BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  SB 363
          Author:   Wright (D)
          Amended:  4/22/13
          Vote:     21


           SENATE PUBLIC SAFETY COMMITTEE  :  6-0, 4/30/13
          AYES:  Hancock, Anderson, Block, De León, Liu, Steinberg
          NO VOTE RECORDED:  Knight

           SENATE APPROPRIATIONS COMMITTEE  :  5-0, 5/13/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NO VOTE RECORDED:  Walters, Gaines


           SUBJECT  :    Firearms:  criminal storage:  unsafe handguns:  fees

           SOURCE  :     Author


           DIGEST  :    This bill provides that any person who owns or  
          possesses any firearm and resides with an individual who he/she  
          knows is prohibited from possessing, receiving, owning, or  
          purchasing a firearm be required to secure the firearm within a  
          locked container, as defined, and store the firearm in a manner  
          that the individual may not gain access to the firearm.

           ANALYSIS  :    

          Existing law:

          1.Provides that, except as specified, a person commits the crime  
            of "criminal storage of a firearm of the first degree" if all  
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            of the following conditions are satisfied:

             A.   The person keeps any loaded firearm within any premises  
               that are under the person's custody or control.

             B.   The person knows or reasonably should know that a child  
               is likely to gain access to the firearm without the  
               permission of the child's parent or legal guardian.

             C.   The child obtains access to the firearm and thereby  
               causes death or great bodily injury to the child or any  
               other person.

             D.   Criminal storage of a firearm in the first degree is  
               punishable as a felony by imprisonment in a county jail for  
               16 months, or two or three years, by a fine not exceeding  
               $10,000, or both; or as a misdemeanor by imprisonment in a  
               county jail not exceeding one year, by a fine not exceeding  
               $1,000, or by both that imprisonment and fine.

          1.Provides that, except as specified, a person commits the crime  
            of "criminal storage of a firearm of the second degree" if all  
            of the following conditions are satisfied:

             A.   The person keeps any loaded firearm within any premises  
               that are under the person's custody or control.

             B.   The person knows or reasonably should know that a child  
               is likely to gain access to the firearm without the  
               permission of the child's parent or legal guardian.

             C.   The child obtains access to the firearm and thereby  
               causes injury, other than great bodily injury, to the child  
               or any other person, or carries the firearm and draws or  
               exhibits the firearm, as specified.

            Criminal storage of a firearm in the second degree is  
            punishable by imprisonment in a county jail not exceeding one  
            year, by a fine not exceeding $1,000, or both.

          1.Requires the Department of Justice (DOJ) to compile, publish,  
            and thereafter maintain a roster listing all of the pistols,  
            revolvers, and other firearms capable of being concealed upon  
            the person that have been tested by a certified testing  

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            laboratory, have been determined not to be unsafe handguns,  
            and may be sold in this state, as specified.  The roster shall  
            list for each firearm the manufacturer, model number, and  
            model name.  DOJ may charge an annual fee to firearms  
            manufacturers and importers for the costs of implementing this  
            program of handgun safety testing, as specified.

          This bill:

          1.Amends the existing crime of "criminal storage of a firearm"  
            to provide that a person who keeps any loaded firearms within  
            any premises and knows or reasonably should know that a person  
            who is prohibited from possessing a firearm pursuant to state  
            or federal law is likely to gain access to the firearm, and  
            that prohibited person does in fact gain access to the firearm  
            and thereby kills or injures someone is guilty of criminal  
            storage of a firearm.  If the prohibited person causes death  
            or great bodily injury, this is punishable as a felony by  
            imprisonment in a county jail for 16 months, or two or three  
            years, by a fine not exceeding $10,000, or both; or as a  
            misdemeanor by imprisonment in a county jail not exceeding one  
            year, by a fine not exceeding $1,000, or by both that  
            imprisonment and fine.  If the prohibited person causes  
            injury, other than great bodily injury, or carries the firearm  
            and draws or exhibits the firearm, as specified, this is  
            punishable by imprisonment in a county jail not exceeding one  
            year, by a fine not exceeding $1,000, or both.

          2.Requires that any person who owns or possesses any firearm and  
            resides with an individual who he/she knows, or has reason to  
            know, is prohibited from possessing, receiving, owning, or  
            purchasing a firearm pursuant to state or federal law to  
            secure the firearm within a locked container, as defined, or  
            with a locking device as defined, or within a gun safe as  
            defined, and store the firearm in a manner that the individual  
            may not gain access to the firearm.  A violation is a  
            misdemeanor punishable by up to one year in a county jail, a  
            fine of up to $1,000, or both.

          3.Provides that, beginning January 1, 2015, the fee charged by  
            DOJ for the handgun safety testing program, as specified,  
            shall be paid on January 1 of every year.

           Background

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          A recent decision by the federal Eighth Circuit Court of Appeals  
          upheld the conviction of a man who had allowed such a  
          "prohibited person" to stay in his RV and disclosed to his guest  
          the location of his firearms in the RV.  (United States v.  
          Stegmeier, 701 F.3d 574 (8th Cir. 2012)).  The Court found that  
          this constituted a violation of the federal law prohibiting  
          disposing of any firearm or ammunition to a prohibited person.

          Thus residing with a person who you know, or have reason to  
          know, is prohibited from owning a firearm for any reason, and  
          giving that person access to any firearms you possess whether  
          that person actually uses the firearm to cause harm or not has  
          been found to be a crime under federal law.  (U.S. v. Stegmeier,  
          supra, 18 U.S.C. 922(d).)  The penalty for violation under  
          federal law is up to 10 years in prison and a fine of up to  
          $250,000.  (18 U.S.C. Sec. 924(a)(2), 18 USC Sec. 3571.)   
          Whether permitting access to firearms to a cohabitant who is  
          prohibited from possessing a firearm is currently a violation of  
          California law is not clear.  As noted above, existing  
          California law provides that "no person, corporation, or dealer  
          shall sell, supply, deliver, or give possession or control of a  
          firearm to anyone whom the person, corporation, or dealer knows  
          or has cause to believe is prohibited from possessing a  
          firearm." (Penal Code Sec. 27500)  While there does not appear  
          to be any published opinion to this effect, a California court  
          could, as the Eighth Circuit Court of Appeals recently did, find  
          that anyone living with a person who is prohibited from  
          possessing a firearm has the duty to deny access to the firearm  
          by the prohibited person.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                 Likely minor, if any, increase in state incarceration  
               costs (General Fund) for additional felony convictions  
               under the expanded definition of the criminal storage of  
               firearms law resulting in great bodily injury or death.   
               There have been no commitments to state prison over the  
               past three years for this offense.

                 Potential increase in county jail incarceration costs  

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               (Local) for misdemeanor convictions related to violations  
               of the criminal storage of firearms law.

                 Non-reimbursable local enforcement costs offset to a  
               degree by fine revenue.

                 No net impact on fee revenues.  Potential fee revenue  
               increase in FY 2014-15 (Special Fund*) due to the annual  
               fee payment shift to January 1 of each year effective  
               January 1, 2015.

           SUPPORT  :   (Verified  5/15/13)

          California Chapters of the Brady Campaign to Prevent Gun  
          Violence
          Coalition Against Gun Violence
          South County Citizens Against Gun Violence

           OPPOSITION  :    (Verified  5/15/13)

          California Association of Federal Firearms Licensees
          California Attorneys for Criminal Justice
          California Right to Carry

           ARGUMENTS IN SUPPORT  :    According to the author's office:

               A firearm owner may legally own a firearm and keep a  
               firearm in his/her own home.  However, a problem arises  
               when a person who is prohibited from owning or possessing a  
               firearm is residing in the same home as the person who  
               legally owns a firearm.  This means that the prohibited  
               person could potentially have "possession" and access to  
               the firearm because it is stored under the same roof.

               This is similar to what happened in the tragic Connecticut  
               School shooting on December 14, 2012.  Adam Lanza took his  
               mother's firearms and used them to kill his mother, and the  
               20 children and six adults at Sandy Hook Elementary School.  
                If his mother had stored the firearms safely, and away  
               from her son, who had a history of mental instability, it  
               would have made it harder for Mr. Lanza to access the  
               firearms and commit the gruesome crimes.

               By imposing a duty on persons who legally own firearms to  

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               safely store them when they know, or have reason to know,  
               that they are living with someone who is prohibited from  
               owning or possessing a firearm, the chances that a  
               prohibited person could access and use a firearm is greatly  
               reduced.  Firearm owners must recognize that owning a  
               firearm comes with certain responsibilities, one of which  
               is to make sure that they are safely stored so that that  
               prohibited, and possibly dangerous persons with whom they  
               reside, cannot access them.

           ARGUMENTS IN OPPOSITION :    The California Attorneys for  
          Criminal Justice write, "This bill would require an owner of a  
          pistol, revolvers, or other firearms able to be concealed to be  
          secured in a locked container in order to prevent possession of  
          the firearm from a prohibited person.  This bill would make the  
          violations of this requirement a misdemeanor punishable by  
          imprisonment in county jail and/or fine.

          First, we believe that many citizens have firearms in their  
          homes for protection and that having these firearms always  
          locked up or with trigger locks because there may be a  
          prohibited person in the house defeats this purpose.  The  
          current bill makes access to children an exception but most  
          people in that instance lock their weapons during the day and  
          have them at the ready only when they have an immediate fear or  
          at night.

          Second, the language of the bill makes a person liable if they  
          know or have reason to know a person is prohibited from  
          possessing a firearm.  In fact the police will make arrests on  
          the presumption and the accused will then have to go through the  
          process of proving their innocence.  This will be a burden on  
          the arrestee and the courts.

          Third, the word "resides" has a very broad meaning.  When  
          several people live in one residence, even if related, and keep  
          separate rooms, you can bet the police will arrest everyone in  
          the residence and let the courts sort out the persons liable  
          under this section.  The fact that it is a misdemeanor will  
          still require court appearances, legal fees, and court time to  
          sort this out."


          JG:ej  5/15/13   Senate Floor Analyses 

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                           SUPPORT/OPPOSITION:  SEE ABOVE

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