Senate Bill No. 127

Introduced by Senator Gaines

January 22, 2013

An act to amend Section 8103 of the Welfare and Institutions Code, relating to firearms.

LEGISLATIVE COUNSEL’S DIGEST

SB 127, as introduced, Gaines. Firearms: mentally disordered persons: possession.

Existing law prohibits a person who has been adjudicated by a court of any state to be a danger to others as a result of a mental disorder or mental illness, or who has been adjudicated to be a mentally disordered sex offender, after October 1, 1955, from receiving or possessing any firearm or any other deadly weapon unless the person has been issued a certificate by the court of adjudication stating that the person may possess a firearm or any other deadly weapon. A person who violates or attempts to violate this provision is guilty of a felony or a misdemeanor.

This bill would prohibit persons adjudicated to be a danger pursuant to the above provisions after January 1, 2014, from receiving or possessing any firearm or any other deadly weapon and remove the authority of a court to issue a certificate for that person to possess a firearm or any other deadly weapon. Because a violation of above prohibition would be a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 8103 of the Welfare and Institutions Code
is amended to read:

8103.  

(a) (1)  begin delete No end delete begin insert Except as provided in paragraph (2), no end insert
person who begin insert , end insert after October 1, 1955, has been adjudicated by a court
of any state to be a danger to others as a result of a mental disorder
or mental illness, or who has been adjudicated to be a mentally
disordered sex offender, shall purchase or receive, or attempt to
purchase or receive, or have in his or her possession, custody, or
control any firearm or any other deadly weapon unless there has
been issued to the person a certificate by the court of adjudication
upon release from treatment or at a later date stating that the person
may possess a firearm or any other deadly weapon without
endangering others, and the person has not, subsequent to the
issuance of the certificate, again been adjudicated by a court to be
a danger to others as a result of a mental disorder or mental illness.

begin insert

(2) No person who, after January 1, 2014, has been adjudicated
by a court of any state to be a danger to others as a result of a
mental disorder or mental illness, or who has been adjudicated to
be a mentally disordered sex offender, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession,
custody, or control, any firearm or any other deadly weapon.

end insert begin delete

(2)

end delete

begin insert (3) end insert  The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described
in paragraph (1) begin insert or (2) end insert . The court shall also notify the Department
of Justice of any certificate issued as described in paragraph (1).

(b) (1) No person who has been found, pursuant to Section
1026 of the Penal Code or the law of any other state or the United
States, not guilty by reason of insanity of murder, mayhem, a
violation of Section 207, 209, or 209.5 of the Penal Code in which
the victim suffers intentionally inflicted great bodily injury,
carjacking or robbery in which the victim suffers great bodily
injury, a violation of Section 451 or 452 of the Penal Code
involving a trailer coach, as defined in Section 635 of the Vehicle
Code, or any dwelling house, a violation of paragraph (1) or (2)
of subdivision (a) of Section 262 or paragraph (2) or (3) of
subdivision (a) of Section 261 of the Penal Code, a violation of
Section 459 of the Penal Code in the first degree, assault with
intent to commit murder, a violation of Section 220 of the Penal
Code in which the victim suffers great bodily injury, a violation
of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
Penal Code, or of a felony involving death, great bodily injury, or
an act which poses a serious threat of bodily harm to another
person, or a violation of the law of any other state or the United
States that includes all the elements of any of the above felonies
as defined under California law, shall purchase or receive, or
attempt to purchase or receive, or have in his or her possession or
under his or her custody or control any firearm or any other deadly
weapon.

(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).

(c) (1) No person who has been found, pursuant to Section 1026
of the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt
to purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless
the court of commitment has found the person to have recovered
sanity, pursuant to Section 1026.2 of the Penal Code or the law of
any other state or the United States.

(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.

(d) (1) No person found by a court to be mentally incompetent
to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
or the law of any other state or the United States, shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control, any firearm or any other
deadly weapon, unless there has been a finding with respect to the
person of restoration to competence to stand trial by the committing
court, pursuant to Section 1372 of the Penal Code or the law of
any other state or the United States.

(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent
as described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered
his or her competence.

(e) (1) No person who has been placed under conservatorship
by a court, pursuant to Section 5350 or the law of any other state
or the United States, because the person is gravely disabled as a
result of a mental disorder or impairment by chronic alcoholism,
shall purchase or receive, or attempt to purchase or receive, or
shall have in his or her possession, custody, or control, any firearm
or any other deadly weapon while under the conservatorship if, at
the time the conservatorship was ordered or thereafter, the court
which imposed the conservatorship found that possession of a
firearm or any other deadly weapon by the person would present
a danger to the safety of the person or to others. Upon placing any
person under conservatorship, and prohibiting firearm or any other
deadly weapon possession by the person, the court shall notify the
person of this prohibition.

(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the
conservatorship is to be terminated. If the conservatorship is
subsequently terminated before the date listed in the notice to the
Department of Justice or the court subsequently finds that
possession of a firearm or any other deadly weapon by the person
would no longer present a danger to the safety of the person or
others, the court shall immediately notify the Department of Justice.

(3) All information provided to the Department of Justice
pursuant to paragraph (2) shall be kept confidential, separate, and
apart from all other records maintained by the Department of
Justice, and shall be used only to determine eligibility to purchase
or possess firearms or other deadly weapons. Any person who
knowingly furnishes that information for any other purpose is
guilty of a misdemeanor. All the information concerning any person
shall be destroyed upon receipt by the Department of Justice of
notice of the termination of conservatorship as to that person
pursuant to paragraph (2).

(f) (1) No person who has been (A) taken into custody as
provided in Section 5150 because that person is a danger to himself,
herself, or to others, (B) assessed within the meaning of Section
5151, and (C) admitted to a designated facility within the meaning
of Sections 5151 and 5152 because that person is a danger to
himself, herself, or others, shall own, possess, control, receive, or
purchase, or attempt to own, possess, control, receive, or purchase
any firearm for a period of five years after the person is released
from the facility. A person described in the preceding sentence,
however, may own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
if the superior court has, pursuant to paragraph (5), found that the
people of the State of California have not met their burden pursuant
to paragraph (6).

(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.

Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.

(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.

(3) Prior to, or concurrent with, the discharge, the facility shall
inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe
the form. Where the person requests a hearing at the time of
discharge, the facility shall forward the form to the superior court
unless the person states that he or she will submit the form to the
superior court.

(4) The Department of Justice shall provide the form upon
request to any person described in paragraph (1). The Department
of Justice shall also provide the form to the superior court in each
county. A person described in paragraph (1) may make a single
request for a hearing at any time during the five-year period. The
request for hearing shall be made on the form prescribed by the
department or in a document that includes equivalent language.

(5) Any person who is subject to paragraph (1) who has
requested a hearing from the superior court of his or her county
of residence for an order that he or she may own, possess, control,
receive, or purchase firearms shall be given a hearing. The clerk
of the court shall set a hearing date and notify the person, the
Department of Justice, and the district attorney. The people of the
State of California shall be the plaintiff in the proceeding and shall
be represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of
his or her detention, the county in which the person was detained,
or the county in which the person was evaluated or treated. Within
seven days after the request for a hearing, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon
showing good cause, the district attorney shall be entitled to a
continuance not to exceed 14 days after the district attorney was
notified of the hearing date by the clerk of the court. If additional
continuances are granted, the total length of time for continuances
shall not exceed 60 days. The district attorney may notify the
county mental health director of the hearing who shall provide
information about the detention of the person that may be relevant
to the court and shall file that information with the superior court.
That information shall be disclosed to the person and to the district
attorney. The court, upon motion of the person subject to paragraph
(1) establishing that confidential information is likely to be
discussed during the hearing that would cause harm to the person,
shall conduct the hearing in camera with only the relevant parties
present, unless the court finds that the public interest would be
better served by conducting the hearing in public. Notwithstanding
any other law, declarations, police reports, including criminal
history information, and any other material and relevant evidence
that is not excluded under Section 352 of the Evidence Code shall
be admissible at the hearing under this section.

(6) The people shall bear the burden of showing by a
preponderance of the evidence that the person would not be likely
to use firearms in a safe and lawful manner.

(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to the
five-year prohibition in this section on the ownership, control,
receipt, possession, or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of
the order, the Department of Justice shall delete any reference to
the prohibition against firearms from the person’s state mental
health firearms prohibition system information.

(8) Where the district attorney declines or fails to go forward
in the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision
on the ownership, control, receipt, possession, or purchase of
firearms. A copy of the order shall be submitted to the Department
of Justice. Upon receipt of the order, the Department of Justice
shall, within 15 days, delete any reference to the prohibition against
firearms from the person’s state mental health firearms prohibition
system information.

(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of persons
to own, possess, control, receive, or purchase a firearm if the person
is the subject of a criminal investigation, a part of which involves
the ownership, possession, control, receipt, or purchase of a
firearm.

(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase, any firearm for a period of five years.

Any person who meets the criteria contained in subdivision (e)
or (f) who is released from intensive treatment shall nevertheless,
if applicable, remain subject to the prohibition contained in
subdivision (e) or (f).

(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant
to this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).

(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.

(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).

(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that
he or she may own, possess, control, receive, or purchase firearms.
At the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The people of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the county
mental health director of the petition, and the county mental health
director shall provide information about the detention of the person
that may be relevant to the court and shall file that information
with the superior court. That information shall be disclosed to the
person and to the district attorney. The court, upon motion of the
person subject to paragraph (1) establishing that confidential
information is likely to be discussed during the hearing that would
cause harm to the person, shall conduct the hearing in camera with
only the relevant parties present, unless the court finds that the
public interest would be better served by conducting the hearing
in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at
the hearing under this section. If the court finds by a preponderance
of the evidence that the person would be likely to use firearms in
a safe and lawful manner, the court may order that the person may
own, control, receive, possess, or purchase firearms. A copy of
the order shall be submitted to the Department of Justice. Upon
receipt of the order, the Department of Justice shall delete any
reference to the prohibition against firearms from the person’s
state mental health firearms prohibition system information.

(h) For all persons identified in subdivisions (f) and (g), facilities
shall report to the Department of Justice as specified in those
subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).

Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have
been submitted pursuant to subdivision (f) or (g). However, a report
shall not be filed for persons who are discharged within 31 days
after the date of admission.

(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code or in a county
jail for not more than one year.

(j) “Deadly weapon,” as used in this section, has the meaning
prescribed by Section 8100.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.