Amended in Senate March 19, 2013

Senate BillNo. 127


Introduced by Senator Gaines

January 22, 2013


An act to amendbegin delete Section 8103end deletebegin insert Sections 8104 and 8105end insert of the Welfare and Institutions Code, relating to firearms.

LEGISLATIVE COUNSEL’S DIGEST

SB 127, as amended, Gaines. Firearms: mentally disordered persons:begin delete possession.end deletebegin insert report to Department of Justice.end insert

begin insert

(1) Existing law prohibits mentally ill persons who meet specified criteria from possessing firearms or deadly weapons. Existing law requires the State Department of State Hospitals to maintain records in its possession that are necessary to identify persons who come within this prohibition and to make these records available to the Department of Justice upon request.

end insert
begin insert

This bill would require the State Department of State Hospitals to make these records available to the Department of Justice electronically, within 24 hours, in a manner prescribed by the Department of Justice.

end insert
begin insert

(2) Existing law prohibits a person from possessing a firearm or deadly weapon for a period of 6 months when the person has communicated a serious threat of physical violence against a reasonably identifiable victim or victims to a licensed psychotherapist. Existing law requires the licensed psychotherapist to immediately report the identity of the person to a local law enforcement agency, and requires the local law enforcement agency to immediately notify the Department of Justice.

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begin insert

This bill would instead require the licensed psychotherapist to make the report to local law enforcement electronically, within 24 hours, in a manner prescribed by the department. The bill would also require the local law enforcement agency receiving the report to notify the department electronically within 24 hours, in a manner prescribed by the department.

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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.

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begin delete

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.

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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.

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

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteyes end deletebegin insertnoend insert.

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 8104 of the end insertbegin insertWelfare and Institutions Codeend insert
2begin insert is amended to read:end insert

3

8104.  

The State Department of State Hospitals shall maintain
4in a convenient central location and shall make available to the
5Department of Justice those records that the State Department of
6State Hospitals has in its possession that are necessary to identify
7persons who come within Section 8100 or 8103. These records
8shall be made available to the Department of Justicebegin insert electronically,
9within 24 hours, in a manner prescribed by the Department of
10Justice,end insert
upon request. The Department of Justice shall make these
P3    1requests only with respect to its duties with regard to applications
2for permits for, or to carry, or the possession, purchase, or transfer
3of, explosives as defined in Section 12000 of the Health and Safety
4Code, devices defined in Section 16250, 16530, or 16640 of the
5Penal Code, in subdivisions (a) to (d), inclusive, of Section 16520
6of the Penal Code, or in subdivision (a) of Section 16840 of the
7Penal Code, machineguns as defined in Section 16880 of the Penal
8Code, short-barreled shotguns or short-barreled rifles as defined
9in Sections 17170 and 17180 of the Penal Code, assault weapons
10as defined in Section 30510 of the Penal Code, and destructive
11devices as defined in Section 16460 of the Penal Code, or to
12determine the eligibility of a person to acquire, carry, or possess
13a firearm, explosive, or destructive device by a person who is
14subject to a criminal investigation, a part of which involves the
15acquisition, carrying, or possession of a firearm by that person.
16These records shall not be furnished or made available to any
17person unless the department determines that disclosure of any
18information in the records is necessary to carry out its duties with
19respect to applications for permits for, or to carry, or the possession,
20purchase, or transfer of, explosives, destructive devices, devices
21as defined in Section 16250, 16530, or 16640 of the Penal Code,
22in subdivisions (a) to (d), inclusive, of Section 16520 of the Penal
23Code, or in subdivision (a) of Section 16840 of the Penal Code,
24short-barreled shotguns, short-barreled rifles, assault weapons,
25and machineguns, or to determine the eligibility of a person to
26acquire, carry, or possess a firearm, explosive, or destructive device
27by a person who is subject to a criminal investigation, a part of
28which involves the acquisition, carrying, or possession of a firearm
29by that person.

30begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 8105 of the end insertbegin insertWelfare and Institutions Codeend insertbegin insert is
31amended to read:end insert

32

8105.  

(a) The Department of Justice shall request each public
33and private mental hospital, sanitarium, and institution to submit
34to the department that information that the department deems
35necessary to identify those persons who are within subdivision (a)
36of Section 8100, in order to carry out its duties in relation to
37firearms, destructive devices, and explosives.

38(b) Upon request of the Department of Justice pursuant to
39subdivision (a), each public and private mental hospital, sanitarium,
40and institution shall submit to the department that information
P4    1which the department deems necessary to identify those persons
2who are within subdivision (a) of Section 8100, in order to carry
3out its duties in relation to firearms, destructive devices, and
4explosives.

5(c) A licensed psychotherapist shallbegin delete immediatelyend delete report to a
6local law enforcement agencybegin insert electronically, within 24 hours, in
7a manner prescribed by the Department of Justice,end insert
the identity of
8a person subject to subdivision (b) of Section 8100. Upon receipt
9of the report, the local law enforcement agency, on a form
10prescribed by the Department of Justice, shallbegin delete immediatelyend delete notify
11the departmentbegin insert electronically, within 24 hours, in a manner
12prescribed by the department,end insert
of the person who is subject to
13subdivision (b) of Section 8100.

14(d) All information provided to the Department of Justice
15pursuant to this section shall be kept confidential, separate and
16apart from all other records maintained by the department. The
17information provided to the Department of Justice pursuant to this
18section shall be used only for any of the following purposes:

19(1) By the department to determine eligibility of a person to
20acquire, carry, or possess firearms, destructive devices, or
21explosives.

22(2) For the purposes of the court proceedings described in
23subdivision (b) of Section 8100 to determine the eligibility of the
24person who is bringing the petition pursuant to paragraph (3) of
25subdivision (b) of Section 8100.

26(3) To determine the eligibility of a person to acquire, carry, or
27possess firearms, destructive devices, or explosives who is the
28subject of a criminal investigation, if a part of the criminal
29investigation involves the acquisition, carrying, or possession of
30firearms, explosives, or destructive devices by that person.

31(e) Reports shall not be required or requested under this section
32where the same person has been previously reported pursuant to
33Section 8103 or 8104.

begin delete
34

SECTION 1.  

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

36

8103.  

(a) (1) Except as provided in paragraph (2), no person
37who, after October 1, 1955, has been adjudicated by a court of any
38state to be a danger to others as a result of a mental disorder or
39mental illness, or who has been adjudicated to be a mentally
40disordered sex offender, shall purchase or receive, or attempt to
P5    1purchase or receive, or have in his or her possession, custody, or
2control any firearm or any other deadly weapon unless there has
3been issued to the person a certificate by the court of adjudication
4 upon release from treatment or at a later date stating that the person
5may possess a firearm or any other deadly weapon without
6endangering others, and the person has not, subsequent to the
7issuance of the certificate, again been adjudicated by a court to be
8a danger to others as a result of a mental disorder or mental illness.

9(2) No person who, after January 1, 2014, has been adjudicated
10by a court of any state to be a danger to others as a result of a
11mental disorder or mental illness, or who has been adjudicated to
12be a mentally disordered sex offender, shall purchase or receive,
13or attempt to purchase or receive, or have in his or her possession,
14custody, or control, any firearm or any other deadly weapon.

15(3) The court shall immediately notify the Department of Justice
16of the court order finding the individual to be a person described
17in paragraph (1) or (2). The court shall also notify the Department
18of Justice of any certificate issued as described in paragraph (1).

19(b) (1) No person who has been found, pursuant to Section
201026 of the Penal Code or the law of any other state or the United
21States, not guilty by reason of insanity of murder, mayhem, a
22violation of Section 207, 209, or 209.5 of the Penal Code in which
23the victim suffers intentionally inflicted great bodily injury,
24carjacking or robbery in which the victim suffers great bodily
25injury, a violation of Section 451 or 452 of the Penal Code
26involving a trailer coach, as defined in Section 635 of the Vehicle
27Code, or any dwelling house, a violation of paragraph (1) or (2)
28of subdivision (a) of Section 262 or paragraph (2) or (3) of
29subdivision (a) of Section 261 of the Penal Code, a violation of
30Section 459 of the Penal Code in the first degree, assault with
31intent to commit murder, a violation of Section 220 of the Penal
32Code in which the victim suffers great bodily injury, a violation
33of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
34Penal Code, or of a felony involving death, great bodily injury, or
35an act which poses a serious threat of bodily harm to another
36person, or a violation of the law of any other state or the United
37States that includes all the elements of any of the above felonies
38as defined under California law, shall purchase or receive, or
39attempt to purchase or receive, or have in his or her possession or
P6    1under his or her custody or control any firearm or any other deadly
2weapon.

3(2) The court shall immediately notify the Department of Justice
4of the court order finding the person to be a person described in
5paragraph (1).

6(c) (1) No person who has been found, pursuant to Section 1026
7of the Penal Code or the law of any other state or the United States,
8not guilty by reason of insanity of any crime other than those
9described in subdivision (b) shall purchase or receive, or attempt
10to purchase or receive, or shall have in his or her possession,
11custody, or control any firearm or any other deadly weapon unless
12the court of commitment has found the person to have recovered
13sanity, pursuant to Section 1026.2 of the Penal Code or the law of
14any other state or the United States.

15(2) The court shall immediately notify the Department of Justice
16of the court order finding the person to be a person described in
17paragraph (1). The court shall also notify the Department of Justice
18when it finds that the person has recovered his or her sanity.

19(d) (1) No person found by a court to be mentally incompetent
20to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
21or the law of any other state or the United States, shall purchase
22or receive, or attempt to purchase or receive, or shall have in his
23or her possession, custody, or control, any firearm or any other
24deadly weapon, unless there has been a finding with respect to the
25person of restoration to competence to stand trial by the committing
26court, pursuant to Section 1372 of the Penal Code or the law of
27any other state or the United States.

28(2) The court shall immediately notify the Department of Justice
29of the court order finding the person to be mentally incompetent
30as described in paragraph (1). The court shall also notify the
31Department of Justice when it finds that the person has recovered
32his or her competence.

33(e) (1) No person who has been placed under conservatorship
34by a court, pursuant to Section 5350 or the law of any other state
35or the United States, because the person is gravely disabled as a
36result of a mental disorder or impairment by chronic alcoholism,
37shall purchase or receive, or attempt to purchase or receive, or
38shall have in his or her possession, custody, or control, any firearm
39or any other deadly weapon while under the conservatorship if, at
40the time the conservatorship was ordered or thereafter, the court
P7    1which imposed the conservatorship found that possession of a
2firearm or any other deadly weapon by the person would present
3a danger to the safety of the person or to others. Upon placing any
4person under conservatorship, and prohibiting firearm or any other
5deadly weapon possession by the person, the court shall notify the
6person of this prohibition.

7(2) The court shall immediately notify the Department of Justice
8of the court order placing the person under conservatorship and
9prohibiting firearm or any other deadly weapon possession by the
10person as described in paragraph (1). The notice shall include the
11date the conservatorship was imposed and the date the
12conservatorship is to be terminated. If the conservatorship is
13subsequently terminated before the date listed in the notice to the
14Department of Justice or the court subsequently finds that
15possession of a firearm or any other deadly weapon by the person
16would no longer present a danger to the safety of the person or
17others, the court shall immediately notify the Department of Justice.

18(3) All information provided to the Department of Justice
19pursuant to paragraph (2) shall be kept confidential, separate, and
20apart from all other records maintained by the Department of
21Justice, and shall be used only to determine eligibility to purchase
22or possess firearms or other deadly weapons. Any person who
23knowingly furnishes that information for any other purpose is
24guilty of a misdemeanor. All the information concerning any person
25shall be destroyed upon receipt by the Department of Justice of
26notice of the termination of conservatorship as to that person
27pursuant to paragraph (2).

28(f) (1) No person who has been (A) taken into custody as
29provided in Section 5150 because that person is a danger to himself,
30herself, or to others, (B) assessed within the meaning of Section
315151, and (C) admitted to a designated facility within the meaning
32of Sections 5151 and 5152 because that person is a danger to
33himself, herself, or others, shall own, possess, control, receive, or
34purchase, or attempt to own, possess, control, receive, or purchase
35any firearm for a period of five years after the person is released
36from the facility. A person described in the preceding sentence,
37however, may own, possess, control, receive, or purchase, or
38attempt to own, possess, control, receive, or purchase any firearm
39if the superior court has, pursuant to paragraph (5), found that the
P8    1people of the State of California have not met their burden pursuant
2to paragraph (6).

3(2) (A) For each person subject to this subdivision, the facility
4shall immediately, on the date of admission, submit a report to the
5Department of Justice, on a form prescribed by the Department of
6Justice, containing information that includes, but is not limited to,
7the identity of the person and the legal grounds upon which the
8person was admitted to the facility.

9Any report submitted pursuant to this paragraph shall be
10confidential, except for purposes of the court proceedings described
11in this subdivision and for determining the eligibility of the person
12to own, possess, control, receive, or purchase a firearm.

13(B) Commencing July 1, 2012, facilities shall submit reports
14pursuant to this paragraph exclusively by electronic means, in a
15 manner prescribed by the Department of Justice.

16(3) Prior to, or concurrent with, the discharge, the facility shall
17inform a person subject to this subdivision that he or she is
18prohibited from owning, possessing, controlling, receiving, or
19purchasing any firearm for a period of five years. Simultaneously,
20the facility shall inform the person that he or she may request a
21hearing from a court, as provided in this subdivision, for an order
22permitting the person to own, possess, control, receive, or purchase
23a firearm. The facility shall provide the person with a form for a
24request for a hearing. The Department of Justice shall prescribe
25the form. Where the person requests a hearing at the time of
26discharge, the facility shall forward the form to the superior court
27unless the person states that he or she will submit the form to the
28superior court.

29(4) The Department of Justice shall provide the form upon
30request to any person described in paragraph (1). The Department
31of Justice shall also provide the form to the superior court in each
32county. A person described in paragraph (1) may make a single
33request for a hearing at any time during the five-year period. The
34request for hearing shall be made on the form prescribed by the
35department or in a document that includes equivalent language.

36(5) Any person who is subject to paragraph (1) who has
37requested a hearing from the superior court of his or her county
38of residence for an order that he or she may own, possess, control,
39receive, or purchase firearms shall be given a hearing. The clerk
40of the court shall set a hearing date and notify the person, the
P9    1Department of Justice, and the district attorney. The people of the
2State of California shall be the plaintiff in the proceeding and shall
3be represented by the district attorney. Upon motion of the district
4attorney, or on its own motion, the superior court may transfer the
5hearing to the county in which the person resided at the time of
6his or her detention, the county in which the person was detained,
7or the county in which the person was evaluated or treated. Within
8seven days after the request for a hearing, the Department of Justice
9shall file copies of the reports described in this section with the
10superior court. The reports shall be disclosed upon request to the
11person and to the district attorney. The court shall set the hearing
12within 30 days of receipt of the request for a hearing. Upon
13showing good cause, the district attorney shall be entitled to a
14continuance not to exceed 14 days after the district attorney was
15notified of the hearing date by the clerk of the court. If additional
16continuances are granted, the total length of time for continuances
17shall not exceed 60 days. The district attorney may notify the
18county mental health director of the hearing who shall provide
19information about the detention of the person that may be relevant
20to the court and shall file that information with the superior court.
21That information shall be disclosed to the person and to the district
22attorney. The court, upon motion of the person subject to paragraph
23(1) establishing that confidential information is likely to be
24discussed during the hearing that would cause harm to the person,
25shall conduct the hearing in camera with only the relevant parties
26present, unless the court finds that the public interest would be
27better served by conducting the hearing in public. Notwithstanding
28any other law, declarations, police reports, including criminal
29history information, and any other material and relevant evidence
30that is not excluded under Section 352 of the Evidence Code shall
31be admissible at the hearing under this section.

32(6) The people shall bear the burden of showing by a
33preponderance of the evidence that the person would not be likely
34to use firearms in a safe and lawful manner.

35(7) If the court finds at the hearing set forth in paragraph (5)
36that the people have not met their burden as set forth in paragraph
37(6), the court shall order that the person shall not be subject to the
38five-year prohibition in this section on the ownership, control,
39receipt, possession, or purchase of firearms. A copy of the order
40shall be submitted to the Department of Justice. Upon receipt of
P10   1the order, the Department of Justice shall delete any reference to
2the prohibition against firearms from the person’s state mental
3health firearms prohibition system information.

4(8) Where the district attorney declines or fails to go forward
5in the hearing, the court shall order that the person shall not be
6subject to the five-year prohibition required by this subdivision
7on the ownership, control, receipt, possession, or purchase of
8firearms. A copy of the order shall be submitted to the Department
9of Justice. Upon receipt of the order, the Department of Justice
10shall, within 15 days, delete any reference to the prohibition against
11firearms from the person’s state mental health firearms prohibition
12system information.

13(9) Nothing in this subdivision shall prohibit the use of reports
14filed pursuant to this section to determine the eligibility of persons
15to own, possess, control, receive, or purchase a firearm if the person
16is the subject of a criminal investigation, a part of which involves
17the ownership, possession, control, receipt, or purchase of a
18firearm.

19(g) (1) No person who has been certified for intensive treatment
20under Section 5250, 5260, or 5270.15 shall own, possess, control,
21receive, or purchase, or attempt to own, possess, control, receive,
22or purchase, any firearm for a period of five years.

23Any person who meets the criteria contained in subdivision (e)
24or (f) who is released from intensive treatment shall nevertheless,
25if applicable, remain subject to the prohibition contained in
26subdivision (e) or (f).

27(2) (A) For each person certified for intensive treatment under
28paragraph (1), the facility shall immediately submit a report to the
29Department of Justice, on a form prescribed by the department,
30containing information regarding the person, including, but not
31limited to, the legal identity of the person and the legal grounds
32upon which the person was certified. Any report submitted pursuant
33to this paragraph shall only be used for the purposes specified in
34paragraph (2) of subdivision (f).

35(B) Commencing July 1, 2012, facilities shall submit reports
36pursuant to this paragraph exclusively by electronic means, in a
37manner prescribed by the Department of Justice.

38(3) Prior to, or concurrent with, the discharge of each person
39certified for intensive treatment under paragraph (1), the facility
P11   1shall inform the person of that information specified in paragraph
2(3) of subdivision (f).

3(4) Any person who is subject to paragraph (1) may petition the
4superior court of his or her county of residence for an order that
5he or she may own, possess, control, receive, or purchase firearms.
6At the time the petition is filed, the clerk of the court shall set a
7hearing date and notify the person, the Department of Justice, and
8the district attorney. The people of the State of California shall be
9the respondent in the proceeding and shall be represented by the
10district attorney. Upon motion of the district attorney, or on its
11own motion, the superior court may transfer the petition to the
12county in which the person resided at the time of his or her
13detention, the county in which the person was detained, or the
14county in which the person was evaluated or treated. Within seven
15days after receiving notice of the petition, the Department of Justice
16shall file copies of the reports described in this section with the
17superior court. The reports shall be disclosed upon request to the
18person and to the district attorney. The district attorney shall be
19entitled to a continuance of the hearing to a date of not less than
2014 days after the district attorney was notified of the hearing date
21by the clerk of the court. The district attorney may notify the county
22mental health director of the petition, and the county mental health
23director shall provide information about the detention of the person
24that may be relevant to the court and shall file that information
25with the superior court. That information shall be disclosed to the
26person and to the district attorney. The court, upon motion of the
27person subject to paragraph (1) establishing that confidential
28information is likely to be discussed during the hearing that would
29cause harm to the person, shall conduct the hearing in camera with
30only the relevant parties present, unless the court finds that the
31public interest would be better served by conducting the hearing
32in public. Notwithstanding any other provision of law, any
33declaration, police reports, including criminal history information,
34and any other material and relevant evidence that is not excluded
35under Section 352 of the Evidence Code, shall be admissible at
36the hearing under this section. If the court finds by a preponderance
37of the evidence that the person would be likely to use firearms in
38a safe and lawful manner, the court may order that the person may
39own, control, receive, possess, or purchase firearms. A copy of
40the order shall be submitted to the Department of Justice. Upon
P12   1receipt of the order, the Department of Justice shall delete any
2reference to the prohibition against firearms from the person’s
3state mental health firearms prohibition system information.

4(h) For all persons identified in subdivisions (f) and (g), facilities
5shall report to the Department of Justice as specified in those
6subdivisions, except facilities shall not report persons under
7subdivision (g) if the same persons previously have been reported
8under subdivision (f).

9Additionally, all facilities shall report to the Department of
10Justice upon the discharge of persons from whom reports have
11been submitted pursuant to subdivision (f) or (g). However, a report
12shall not be filed for persons who are discharged within 31 days
13after the date of admission.

14(i) Every person who owns or possesses or has under his or her
15custody or control, or purchases or receives, or attempts to purchase
16or receive, any firearm or any other deadly weapon in violation of
17this section shall be punished by imprisonment pursuant to
18subdivision (h) of Section 1170 of the Penal Code or in a county
19jail for not more than one year.

20(j) “Deadly weapon,” as used in this section, has the meaning
21prescribed by Section 8100.

22

SEC. 2.  

No reimbursement is required by this act pursuant to
23Section 6 of Article XIII B of the California Constitution because
24the only costs that may be incurred by a local agency or school
25district will be incurred because this act creates a new crime or
26infraction, eliminates a crime or infraction, or changes the penalty
27for a crime or infraction, within the meaning of Section 17556 of
28the Government Code, or changes the definition of a crime within
29the meaning of Section 6 of Article XIII B of the California
30Constitution.

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