Amended in Senate May 7, 2013

Amended in Senate April 3, 2013

Amended in Senate April 1, 2013

Senate BillNo. 755


Introduced by Senator Wolk

(Principal coauthor: Assembly Member Alejo)

(Coauthors: Senators De León, DeSaulnier, Hancock, and Yee)

February 22, 2013


An act to amend Section 29805 of the Penal Code, and to amend Section 8103 of the Welfare and Institutions Code, relating to firearms.

LEGISLATIVE COUNSEL’S DIGEST

SB 755, as amended, Wolk. Firearms: prohibited persons.

(1) Existing law, subject to exceptions, provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess, or have under his or her custody or control, any firearm.begin delete Violationend deletebegin insert Under existing law, a violationend insert of this prohibition is punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding $1,000, or by both that imprisonment and fine.

This bill would add to the list of misdemeanors, the conviction for which is subject to those prohibitions, misdemeanor offenses of violating the above provisions as well as threatening a peace officer, removing a weapon from the person of a peace officer, hazing, transferring a firearm without completing the transaction through a licensed firearms dealer, furnishing ammunition to a minor, possession of ammunition by a person prohibited from having a firearm, furnishing ammunition to a person prohibited from possessing ammunition, carrying ammunition onto school grounds, carrying a loaded or concealed weapon if the person has been previously convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, or if the firearm is not registered, participation in any criminal street gang, a public offense committed for the benefit of a criminal street gang, and disobedience to the terms of an injunction that restrains the activities of a criminal street gang.

The bill would also apply the above 10-year prohibition to a person who has been convicted of 2 or more specified crimes in a 3-year period involving intoxication or possession of certain controlled substances for sale. By changing the definition of a crime, this bill would impose a state-mandated local program.

(2) Existing law prohibits certain specified individuals, including a person who has been adjudicated a danger to others as a result of a mental disorder or mental illness, a person who has been adjudicated a mentally disordered sex offender, a person who has been found not guilty by reason of insanity, or a person who has been placed under conservatorship by a court, among others, from possessing firearms or deadly weapons.

Existing law authorizes a court to order a person to obtain assisted outpatient treatment if certain criteria are met, including that the person is suffering from a mental illness and is unlikely to survive safely in the community without supervision.

This bill would prohibit a person who has been ordered by a court to obtain assisted outpatient treatment from purchasing or possessing any firearm or other deadly weapon while subject to assisted outpatient treatment. The bill would require the court to notify the Department of Justice of the order prohibiting the person from possessing a firearm or other deadly weapon within 2 days of the order, and to notify the Department of Justice when the person is no longer subject to assisted outpatient treatment. Because a violation of this provision would be a crime, this bill would impose a state-mandated local program.

(3) Existing constitutional provisions require that a statute that limits the right of access to meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by that limitation and the need for protecting that interest.

This bill would make a legislative finding and declaration relating to the necessity of treating reports to the Department of Justice as confidential in order to protect the privacy of individuals ordered to obtain assisted outpatient treatment.

(4) 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:

P3    1

SECTION 1.  

The Legislature finds and declares that in order
2to protect the privacy of individuals ordered to obtain assisted
3outpatient treatment, it is necessary that reports made by a court
4to the Department of Justice pursuant to Section 3 of this act be
5confidential, except as provided in this act.

6

SEC. 2.  

Section 29805 of the Penal Code is amended to read:

7

29805.  

(a) Except as provided in Section 29855 or subdivision
8(a) of Section 29800, any person who has been convicted of a
9misdemeanor violation of this section, Section 69, 71, 76, 136.1,
10136.5, or 140, subdivision (b) or (d) of Section 148, paragraph
11(10) of subdivision (a) of Section 166, Section 171b, paragraph
12(1) of subdivision (a) of Section 171c, Section 171d, subdivision
13(a) or (d) of Section 186.22, Section 186.28, 240, 241, 242, 243,
14243.4, 244.5, 245, 245.5, 245.6, 246.3, 247, 273.5, 273.6, 417,
15417.6, 422, 626.9, 646.9, or 830.95, subdivision (a) of former
16Section 12100, as that section read at any time from when it was
17enacted by Section 3 of Chapter 1386 of the Statutes of 1988 to
18when it was repealed by Section 18 of Chapter 23 of the Statutes
19of 1994, Section 17500, 17510, 25300, 25800, 26500, 30300,
2030305, 30306, 30310, 30315, or 32625, subdivision (b) or (d) of
21Section 26100, or Section 27510, or Section 8100, 8101, or 8103
22of the Welfare and Institutions Code, any firearm-related offense
23pursuant to Sections 871.5 and 1001.5 of the Welfare and
24 Institutions Code, Section 25400 that is punishable pursuant to
25paragraph (5) or (6) of subdivision (c) of Section 25400, Section
2625850 that is punishable pursuant to paragraph (5) or (6) of
27subdivision (c) of Section 25850, or of the conduct punished in
28subdivision (c) of Section 27590, and who, within 10 years of the
P4    1conviction, owns, purchases, receives, or has in possession or under
2custody or control, any firearm is guilty of a public offense, which
3shall be punishable by imprisonment in a county jail not exceeding
4one year or in the state prison, by a fine not exceeding one thousand
5dollars ($1,000), or by both that imprisonment and fine.

6(b) Except as provided in Section 29855 or subdivision (a) of
7Section 29800, any person who has been convicted of misdemeanor
8violations of two or more of any of the following offensesbegin insert within
9a threeend insert
begin insert-year periodend insert and who, within 10 years of thebegin insert secondend insert
10 conviction, owns, purchases, receives, or has in possession or under
11custody or control, any firearm is guilty of a public offense, which
12shall be punishable by imprisonment in a county jail not exceeding
13one year or in the state prison, by a fine not exceeding one thousand
14dollars ($1,000), or by both that imprisonment and fine:

begin delete

15(1) Subdivision (e) of Section 1700 of the Business and
16Professions Code.

end delete
begin delete

17(2) Subdivision (e) of Section 1958 of the Business and
18Professions Code.

end delete
begin delete

19(3) Section 2280 of the Business and Professions Code.

end delete
begin delete

20(4) Section 4327 of the Business and Professions Code.

end delete
begin delete

21(5) Subdivision (b), (c), (d), or (f) of Section 655 of the Harbors
22and Navigation Code.

end delete
begin delete

23(6) Section 655.4 of the Harbors and Navigation Code.

end delete
begin delete

30 24(7)

end delete

25begin insert(1)end insert Possession of a controlled substance with intent to sell in
26violation of Section 11357.5 of the Health and Safety Code.

begin delete

32 27(8)

end delete

28begin insert(2)end insert Possession of a controlled substance with intent to sell in
29violation of paragraph (1) of subdivision (b) of Section 11375 of
30the Health and Safety Code.

begin delete

35 31(9)

end delete

32begin insert(3)end insert Possession of a controlled substance with intent to sell in
33violation of Section 11379.2 of the Health and Safety Code.

begin delete

38 34(10)

end delete

35begin insert(4)end insert Section 11550 of the Health and Safety Code.

begin delete

36(11)

end delete

37begin insert(5)end insert Section 191.5.

begin delete

P5   2 38(12)

end delete

39begin insert(6)end insert Subdivision (f) of Section 647.

begin delete

40(13) Section 21407.1 of the Public Utilities Code.

end delete
begin delete

P5    1(14) Section 21200.5 of the Vehicle Code.

end delete
begin delete

8 2(15)

end delete

3begin insert(7)end insert Section 23152 of the Vehicle Code.

begin delete

10 4(16)

end delete

5begin insert(8)end insert Section 23153 of the Vehicle Code.

begin delete

12 6(17)

end delete

7begin insert(9)end insert Section 23154 of the Vehicle Code.

8(c) The court, on forms prescribed by the Department of Justice,
9shall notify the department of persons subject to this section.
10However, the prohibition in this section may be reduced,
11eliminated, or conditioned as provided in Section 29855 or 29860.

12

SEC. 3.  

Section 8103 of the Welfare and Institutions Code is
13amended to read:

14

8103.  

(a) (1) No person who after October 1, 1955, has been
15adjudicated by a court of any state to be a danger to others as a
16result of a mental disorder or mental illness, or who has been
17adjudicated to be a mentally disordered sex offender, shall purchase
18or receive, or attempt to purchase or receive, or have in his or her
19possession, custody, or control any firearm or any other deadly
20weapon unless there has been issued to the person a certificate by
21the court of adjudication upon release from treatment or at a later
22date stating that the person may possess a firearm or any other
23deadly weapon without endangering others, and the person has
24not, subsequent to the issuance of the certificate, again been
25adjudicated by a court to be a danger to others as a result of a
26mental disorder or mental illness.

27(2) The court shall immediately notify the Department of Justice
28of the court order finding the individual to be a person described
29in paragraph (1). The court shall also notify the Department of
30Justice of any certificate issued as described in paragraph (1).

31(b) (1) No person who has been found, pursuant to Section
321026 of the Penal Code or the law of any other state or the United
33States, not guilty by reason of insanity of murder, mayhem, a
34violation of Section 207, 209, or 209.5 of the Penal Code in which
35the victim suffers intentionally inflicted great bodily injury,
36carjacking or robbery in which the victim suffers great bodily
37injury, a violation of Section 451 or 452 of the Penal Code
38involving a trailer coach, as defined in Section 635 of the Vehicle
39Code, or any dwelling house, a violation of paragraph (1) or (2)
40of subdivision (a) of Section 262 or paragraph (2) or (3) of
P6    1subdivision (a) of Section 261 of the Penal Code, a violation of
2Section 459 of the Penal Code in the first degree, assault with
3intent to commit murder, a violation of Section 220 of the Penal
4Code in which the victim suffers great bodily injury, a violation
5of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
6Penal Code, or of a felony involving death, great bodily injury, or
7an act which poses a serious threat of bodily harm to another
8person, or a violation of the law of any other state or the United
9States that includes all the elements of any of the above felonies
10as defined under California law, shall purchase or receive, or
11attempt to purchase or receive, or have in his or her possession or
12under his or her custody or control any firearm or any other deadly
13weapon.

14(2) The court shall immediately notify the Department of Justice
15of the court order finding the person to be a person described in
16paragraph (1).

17(c) (1) No person who has been found, pursuant to Section 1026
18of the Penal Code or the law of any other state or the United States,
19not guilty by reason of insanity of any crime other than those
20described in subdivision (b) shall purchase or receive, or attempt
21to purchase or receive, or shall have in his or her possession,
22custody, or control any firearm or any other deadly weapon unless
23the court of commitment has found the person to have recovered
24sanity, pursuant to Section 1026.2 of the Penal Code or the law of
25any other state or the United States.

26(2) The court shall immediately notify the Department of Justice
27of the court order finding the person to be a person described in
28paragraph (1). The court shall also notify the Department of Justice
29when it finds that the person has recovered his or her sanity.

30(d) (1) No person found by a court to be mentally incompetent
31to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
32or the law of any other state or the United States, shall purchase
33or receive, or attempt to purchase or receive, or shall have in his
34or her possession, custody, or control, any firearm or any other
35deadly weapon, unless there has been a finding with respect to the
36person of restoration to competence to stand trial by the committing
37court, pursuant to Section 1372 of the Penal Code or the law of
38any other state or the United States.

39(2) The court shall immediately notify the Department of Justice
40of the court order finding the person to be mentally incompetent
P7    1as described in paragraph (1). The court shall also notify the
2Department of Justice when it finds that the person has recovered
3his or her competence.

4(e) (1) No person who has been placed under conservatorship
5by a court, pursuant to Section 5350 or the law of any other state
6or the United States, because the person is gravely disabled as a
7result of a mental disorder or impairment by chronic alcoholism,
8shall purchase or receive, or attempt to purchase or receive, or
9shall have in his or her possession, custody, or control, any firearm
10or any other deadly weapon while under the conservatorship if, at
11the time the conservatorship was ordered or thereafter, the court
12which imposed the conservatorship found that possession of a
13firearm or any other deadly weapon by the person would present
14a danger to the safety of the person or to others. Upon placing any
15person under conservatorship, and prohibiting firearm or any other
16deadly weapon possession by the person, the court shall notify the
17person of this prohibition.

18(2) The court shall immediately notify the Department of Justice
19of the court order placing the person under conservatorship and
20prohibiting firearm or any other deadly weapon possession by the
21person as described in paragraph (1). The notice shall include the
22date the conservatorship was imposed and the date the
23conservatorship is to be terminated. If the conservatorship is
24subsequently terminated before the date listed in the notice to the
25Department of Justice or the court subsequently finds that
26possession of a firearm or any other deadly weapon by the person
27would no longer present a danger to the safety of the person or
28others, the court shall immediately notify the Department of Justice.

29(3) All information provided to the Department of Justice
30pursuant to paragraph (2) shall be kept confidential, separate, and
31apart from all other records maintained by the Department of
32Justice, and shall be used only to determine eligibility to purchase
33or possess firearms or other deadly weapons. Any person who
34knowingly furnishes that information for any other purpose is
35guilty of a misdemeanor. All the information concerning any person
36shall be destroyed upon receipt by the Department of Justice of
37notice of the termination of conservatorship as to that person
38pursuant to paragraph (2).

39(f) (1) No person who has been (A) taken into custody as
40provided in Section 5150 because that person is a danger to himself,
P8    1herself, or to others, (B) assessed within the meaning of Section
25151, and (C) admitted to a designated facility within the meaning
3of Sections 5151 and 5152 because that person is a danger to
4himself, herself, or others, shall own, possess, control, receive, or
5purchase, or attempt to own, possess, control, receive, or purchase
6any firearm for a period of five years after the person is released
7from the facility. A person described in the preceding sentence,
8however, may own, possess, control, receive, or purchase, or
9attempt to own, possess, control, receive, or purchase any firearm
10if the superior court has, pursuant to paragraph (5), found that the
11people of the State of California have not met their burden pursuant
12to paragraph (6).

13(2) (A) For each person subject to this subdivision, the facility
14shall immediately, on the date of admission, submit a report to the
15Department of Justice, on a form prescribed by the Department of
16Justice, containing information that includes, but is not limited to,
17the identity of the person and the legal grounds upon which the
18person was admitted to the facility.

19Any report submitted pursuant to this paragraph shall be
20confidential, except for purposes of the court proceedings described
21in this subdivision and for determining the eligibility of the person
22to own, possess, control, receive, or purchase a firearm.

23(B) Commencing July 1, 2012, facilities shall submit reports
24pursuant to this paragraph exclusively by electronic means, in a
25manner prescribed by the Department of Justice.

26(3) Prior to, or concurrent with, the discharge, the facility shall
27inform a person subject to this subdivision that he or she is
28prohibited from owning, possessing, controlling, receiving, or
29purchasing any firearm for a period of five years. Simultaneously,
30the facility shall inform the person that he or she may request a
31hearing from a court, as provided in this subdivision, for an order
32permitting the person to own, possess, control, receive, or purchase
33a firearm. The facility shall provide the person with a form for a
34request for a hearing. The Department of Justice shall prescribe
35the form. Where the person requests a hearing at the time of
36discharge, the facility shall forward the form to the superior court
37unless the person states that he or she will submit the form to the
38superior court.

39(4) The Department of Justice shall provide the form upon
40request to any person described in paragraph (1). The Department
P9    1of Justice shall also provide the form to the superior court in each
2county. A person described in paragraph (1) may make a single
3request for a hearing at any time during the five-year period. The
4request for hearing shall be made on the form prescribed by the
5department or in a document that includes equivalent language.

6(5) Any person who is subject to paragraph (1) who has
7requested a hearing from the superior court of his or her county
8of residence for an order that he or she may own, possess, control,
9receive, or purchase firearms shall be given a hearing. The clerk
10of the court shall set a hearing date and notify the person, the
11Department of Justice, and the district attorney. The people of the
12State of California shall be the plaintiff in the proceeding and shall
13be represented by the district attorney. Upon motion of the district
14attorney, or on its own motion, the superior court may transfer the
15hearing to the county in which the person resided at the time of
16his or her detention, the county in which the person was detained,
17or the county in which the person was evaluated or treated. Within
18seven days after the request for a hearing, the Department of Justice
19shall file copies of the reports described in this section with the
20superior court. The reports shall be disclosed upon request to the
21person and to the district attorney. The court shall set the hearing
22within 30 days of receipt of the request for a hearing. Upon
23showing good cause, the district attorney shall be entitled to a
24continuance not to exceed 14 days after the district attorney was
25notified of the hearing date by the clerk of the court. If additional
26 continuances are granted, the total length of time for continuances
27shall not exceed 60 days. The district attorney may notify the
28county mental health director of the hearing who shall provide
29information about the detention of the person that may be relevant
30to the court and shall file that information with the superior court.
31That information shall be disclosed to the person and to the district
32attorney. The court, upon motion of the person subject to paragraph
33 (1) establishing that confidential information is likely to be
34discussed during the hearing that would cause harm to the person,
35shall conduct the hearing in camera with only the relevant parties
36present, unless the court finds that the public interest would be
37better served by conducting the hearing in public. Notwithstanding
38any other law, declarations, police reports, including criminal
39history information, and any other material and relevant evidence
P10   1that is not excluded under Section 352 of the Evidence Code shall
2be admissible at the hearing under this section.

3(6) The people shall bear the burden of showing by a
4preponderance of the evidence that the person would not be likely
5to use firearms in a safe and lawful manner.

6(7) If the court finds at the hearing set forth in paragraph (5)
7that the people have not met their burden as set forth in paragraph
8(6), the court shall order that the person shall not be subject to the
9five-year prohibition in this section on the ownership, control,
10receipt, possession, or purchase of firearms. A copy of the order
11shall be submitted to the Department of Justice. Upon receipt of
12the order, the Department of Justice shall delete any reference to
13the prohibition against firearms from the person’s state mental
14health firearms prohibition system information.

15(8) Where the district attorney declines or fails to go forward
16 in the hearing, the court shall order that the person shall not be
17subject to the five-year prohibition required by this subdivision
18on the ownership, control, receipt, possession, or purchase of
19firearms. A copy of the order shall be submitted to the Department
20of Justice. Upon receipt of the order, the Department of Justice
21shall, within 15 days, delete any reference to the prohibition against
22firearms from the person’s state mental health firearms prohibition
23system information.

24(9) Nothing in this subdivision shall prohibit the use of reports
25filed pursuant to this section to determine the eligibility of persons
26to own, possess, control, receive, or purchase a firearm if the person
27is the subject of a criminal investigation, a part of which involves
28the ownership, possession, control, receipt, or purchase of a
29firearm.

30(g) (1) No person who has been certified for intensive treatment
31under Section 5250, 5260, or 5270.15 shall own, possess, control,
32receive, or purchase, or attempt to own, possess, control, receive,
33or purchase, any firearm for a period of five years.

34Any person who meets the criteria contained in subdivision (e)
35or (f) who is released from intensive treatment shall nevertheless,
36if applicable, remain subject to the prohibition contained in
37subdivision (e) or (f).

38(2) (A) For each person certified for intensive treatment under
39paragraph (1), the facility shall immediately submit a report to the
40Department of Justice, on a form prescribed by the department,
P11   1containing information regarding the person, including, but not
2limited to, the legal identity of the person and the legal grounds
3upon which the person was certified. Any report submitted pursuant
4to this paragraph shall only be used for the purposes specified in
5paragraph (2) of subdivision (f).

6(B) Commencing July 1, 2012, facilities shall submit reports
7pursuant to this paragraph exclusively by electronic means, in a
8manner prescribed by the Department of Justice.

9(3) Prior to, or concurrent with, the discharge of each person
10certified for intensive treatment under paragraph (1), the facility
11shall inform the person of that information specified in paragraph
12(3) of subdivision (f).

13(4) Any person who is subject to paragraph (1) may petition the
14superior court of his or her county of residence for an order that
15he or she may own, possess, control, receive, or purchase firearms.
16At the time the petition is filed, the clerk of the court shall set a
17hearing date and notify the person, the Department of Justice, and
18the district attorney. The people of the State of California shall be
19the respondent in the proceeding and shall be represented by the
20district attorney. Upon motion of the district attorney, or on its
21own motion, the superior court may transfer the petition to the
22county in which the person resided at the time of his or her
23detention, the county in which the person was detained, or the
24county in which the person was evaluated or treated. Within seven
25days after receiving notice of the petition, the Department of Justice
26shall file copies of the reports described in this section with the
27superior court. The reports shall be disclosed upon request to the
28person and to the district attorney. The district attorney shall be
29entitled to a continuance of the hearing to a date of not less than
3014 days after the district attorney was notified of the hearing date
31by the clerk of the court. The district attorney may notify the county
32mental health director of the petition, and the county mental health
33director shall provide information about the detention of the person
34that may be relevant to the court and shall file that information
35with the superior court. That information shall be disclosed to the
36person and to the district attorney. The court, upon motion of the
37person subject to paragraph (1) establishing that confidential
38information is likely to be discussed during the hearing that would
39cause harm to the person, shall conduct the hearing in camera with
40only the relevant parties present, unless the court finds that the
P12   1public interest would be better served by conducting the hearing
2in public. Notwithstanding any other provision of law, any
3declaration, police reports, including criminal history information,
4and any other material and relevant evidence that is not excluded
5under Section 352 of the Evidence Code, shall be admissible at
6the hearing under this section. If the court finds by a preponderance
7of the evidence that the person would be likely to use firearms in
8a safe and lawful manner, the court may order that the person may
9own, control, receive, possess, or purchase firearms. A copy of
10the order shall be submitted to the Department of Justice. Upon
11receipt of the order, the Department of Justice shall delete any
12reference to the prohibition against firearms from the person’s
13state mental health firearms prohibition system information.

14(h) For all persons identified in subdivisions (f) and (g), facilities
15shall report to the Department of Justice as specified in those
16subdivisions, except facilities shall not report persons under
17subdivision (g) if the same persons previously have been reported
18under subdivision (f).

19Additionally, all facilities shall report to the Department of
20Justice upon the discharge of persons from whom reports have
21been submitted pursuant to subdivision (f) or (g). However, a report
22shall not be filed for persons who are discharged within 31 days
23after the date of admission.

24(i) (1) No person who has been ordered by a court to obtain
25assisted outpatient treatment pursuant to Article 9 (commencing
26with Section 5345) of Chapter 2 of Part 1 of Division 5 shall
27purchase or receive, or attempt to purchase or receive, or shall
28have in his or her possession, custody, or control, any firearm or
29any other deadly weapon while subject to assisted outpatient
30treatment. Upon placing any person under assisted outpatient
31treatment, the court shall notify the person of this prohibition.

32(2) The court shall notify the Department of Justice of the court
33order placing the person in assisted outpatient treatment and
34prohibiting firearm or any other deadly weapon possession by the
35person described in paragraph (1) within two days of the order.
36The court shall also notify the Department of Justice when the
37person subject to paragraph (1) is no longer subject to assisted
38outpatient treatment. Any report submitted pursuant to this
39paragraph shall be confidential, except for purposes of the court
40proceedings specified in this subdivision and for purposes of
P13   1determining the eligibility of the person to own, possess, control,
2receive, or purchase a firearm.

3(j) Every person who owns or possesses or has under his or her
4custody or control, or purchases or receives, or attempts to purchase
5or receive, any firearm or any other deadly weapon in violation of
6this section shall be punished by imprisonment pursuant to
7subdivision (h) of Section 1170 of the Penal Code or in a county
8jail for not more than one year.

9(k) “Deadly weapon,” as used in this section, has the meaning
10prescribed by Section 8100.

11

SEC. 4.  

No reimbursement is required by this act pursuant to
12Section 6 of Article XIII B of the California Constitution because
13the only costs that may be incurred by a local agency or school
14district will be incurred because this act creates a new crime or
15infraction, eliminates a crime or infraction, or changes the penalty
16for a crime or infraction, within the meaning of Section 17556 of
17the Government Code, or changes the definition of a crime within
18the meaning of Section 6 of Article XIII B of the California
19Constitution.



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