BILL ANALYSIS Ó
SB 363
Page 1
Date of Hearing: June 18, 2013
Counsel Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 363 (Wright) - As Amended: June 11, 2013
SUMMARY : Expands the crime of "criminal storage" to include
keeping a loaded firearm within premises where a prohibited
person is likely to gain access and actually accesses and causes
injury as specified. Specifically, 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 would be guilty of
criminal storage of a firearm. If the prohibited person
causes death or great bodily injury, this would be 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 would be
punishable by imprisonment in a county jail not exceeding one
year, by a fine not exceeding $1,000, or both.
2)Provides that, beginning January 1, 2013, the fee charged by
the Department of Justice (DOJ) for the handgun safety testing
program, as specified, shall become an annual fee to be paid
on January 1 of every year.
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
of the following conditions are satisfied: (Penal Code
Section 25100.)
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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.
2)Provides that 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. [Penal Code Section 25110(a).]
3)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: [Penal Code
Section 25100(b).]
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.
4)Specifies that 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.
[Penal Code Section 25110(b).]
5)Provides that, if all of the following conditions are
satisfied, a person shall be punished by imprisonment in a
county jail not exceeding one year, by a fine not exceeding
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$1,000, or both: [Penal Code Section 25200(a).]
a) The person keeps a pistol, revolver, or other firearm
capable of being concealed upon the person, loaded or
unloaded, 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 that firearm without the
permission of the child's parent or legal guardian.
c) The child obtains access to that firearm and thereafter
carries that firearm off-premises.
6)Provides that if all of the following conditions are satisfied
a person shall be punished by imprisonment in a county jail
not exceeding one year, by a fine not exceeding $5,000, or
both: [Penal Code Section 25200(b).]
a) The person keeps any 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 thereafter
carries that firearm off-premises to any public or private
preschool, elementary school, middle school, high school,
or to any school-sponsored event, activity, or performance,
whether occurring on school grounds or elsewhere.
7)Provides that a handgun that a child gains access to and
carries off-premises in violation of this section shall be
deemed "used in the commission of any misdemeanor as provided
in this code or any felony" for the purpose of the authority
to confiscate firearms and other deadly weapons as a nuisance.
[Penal Code Section 25200(c).]
8)Provides that the penalties listed above do not apply if any
of the following are true: (Penal Code Section 25205.)
a) The child obtains the firearm as a result of an illegal
entry into any premises by any person.
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b) The firearm is kept in a locked container or in a
location that a reasonable person would believe to be
secure.
c) The firearm is locked with a locking device, as defined,
which has rendered the firearm inoperable.
d) The firearm is carried on the person within close enough
range that the individual can readily retrieve and use the
firearm as if carried on the person.
e) The person is a peace officer or a member of the Armed
Forces or National Guard and the child obtains the firearm
during, or incidental to, the performance of the person's
duties.
f) The child obtains, or obtains and discharges, the
firearm in a lawful act of self-defense or defense of
another person.
g) The person who keeps a firearm has no reasonable
expectation, based on objective facts and circumstances,
that a child is likely to be present on the premises.
9)Requires licensed firearms dealers to post within the licensed
premises a specified notice disclosing the duty imposed by
this chapter upon any person who keeps any firearm. (Penal
Code Section 25225.)
10)Provides, in federal law, that it is unlawful for any person
to sell or otherwise dispose of any firearm or ammunition to
any person knowing or having reasonable cause to believe that
such person: [18 United States Code Section 922(d).]
a) is under indictment for, or has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year;
b) is a fugitive from justice;
c) is an unlawful user of or addicted to any controlled
substance, as defined
d) has been adjudicated as a mental defective or has been
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committed to any mental institution;
e) who, being an "alien":
i) is illegally or unlawfully in the United States; or
ii) except as specified, has been admitted to the United
States under a nonimmigrant visa, as defined;
f) who has been discharged from the Armed Forces under
dishonorable conditions;
g) who, having been a citizen of the United States, has
renounced his citizenship;
h) is subject to a court order that restrains such person
from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the
partner or child, except that this paragraph shall only
apply to a court order that was issued after a hearing of
which such person received actual notice, and at which such
person had the opportunity to participate; and includes a
finding that such person represents a credible threat to
the physical safety of such intimate partner or child; or
by its terms explicitly prohibits the use, attempted use,
or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or
i) has been convicted in any court of a misdemeanor crime
of domestic violence.
11)Provides that certain people are prohibited from owning or
possessing a firearm. This includes:
a) Lifetime Ban : [Penal Code Section 29800(a), Penal Code
Sections 29800, 23515 and 29805, 18 U.S.C. Section
921(a)(33)(A) and 18 U.S.C. Section 922(g)(9).]
i) Anyone convicted of a felony.
ii) Anyone addicted to a narcotic drug.
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iii) Any juvenile convicted of a violent crime with a gun
and tried in adult court.
iv) Any person convicted of a federal crime that would
be a felony in California and sentenced to more than 30
days in prison, or a fine of more than $1,000.
v) Anyone convicted of certain violent misdemeanors,
e.g., assault with a firearm; inflicting corporal injury
on a spouse or significant other, brandishing a firearm
in the presence of a police officer.
b) 10-Year Ban : Anyone convicted of numerous misdemeanors
involving violence or threats of violence. (Penal Code
Section 29805.)
c) 5-Year Ban : [Welfare and Institutions Code Sections
8100, 8103(f).]
i) Anyone convicted of specified misdemeanors.
ii) Any person taken into custody, assessed, and
admitted to a designated facility due to that person
being found to be a danger to themselves or others as a
result of a mental disorder, is prohibited from
possessing a firearm during treatment and for five years
from the date of their discharge.
12)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, as
specified. Violation is generally a misdemeanor, punishable
by up to six months in county jail, a fine of up to $1,000 or
both. However, violations may be punishable as a felony, with
varying prison terms, where a variety of aggravating
circumstances are present. (Penal Code Sections 27500,
27590.)
13)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
laboratory, have been determined not to be unsafe handguns,
and may be sold in this state, as specified. The roster shall
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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. (Penal Code
Sections 32015.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "A firearm owner
may legally own a firearm and keep a firearm in his or 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
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."
2)Argument in Support : According to the California Police
Chiefs Association , "This bill would expand the provisions of
California's safe storage law to include the circumstance of
when the person who keeps the firearm knows or reasonably
should know that a person prohibited from owning or possessing
a firearm or deadly weapon is likely to gain access to the
firearm."
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3)Argument in Opposition: According to the, California
Association of Federal Firearms Licensees : "SB 363 utterly
destroys the rights of thousands of law-abiding people without
a criminal record by expressly prohibiting them from keeping
firearms for self-defense when they cohabit or share housing
with a prohibited person - even if that prohibited person was
not convicted of a violent crime, and no matter if the firearm
is kept secure or not.
"Furthermore, this bill disproportionately attacks the civil
rights of low-income minorities and those who are forced by
circumstance to reside in high-crime areas who, arguably, have
the greatest need to keep firearms for self-defense.
"Lastly, the bill's other provision - a mandate requiring the
payment of an annual fee 'on January 1 of every year' - is
rather odd given that January 1 is traditionally a State
holiday with nearly every office closed. Perhaps the author
would consider amending the bill to language conducive to the
State's business practices."
4)Related Legislation: AB 500 (Ammiano),would impose safe
storage requirements when prohibited persons reside in a
household with violations a misdemeanor; allows the Department
of Justice (DOJ) to delay release of firearms when background
checks are not completed; and requires the DOJ to be notified
that firearms are in fact delivered after the transferee takes
possession of a gun. AB 500 is awaiting a hearing in the
Senate Public Safety Committee.
5)Prior Legislation : SB 9 (Soto) Chapter 126, Statutes of 2001,
expanded the scope of the storage of firearm laws by changing
the definition of a child from a person under the age of 16 to
a person under the age of 18. Created a misdemeanor for any
person who negligently allows a child to access a firearm if
the child then takes the firearm to school or a school event.
Changed the language in the warnings posted by licensed
firearm dealers to comply with the proposed changes in law.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association
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Law Center to Prevent Gun Violence
Opposition
California Association of Federal Firearms Licensees
One private individual
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744