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. Under existing law, a violation 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.begin insert Existing law makes it a misdemeanor or a felony for a person who is prohibited from owning or possessing a firearm pursuant to these provisions to own, possess, or have under custody or control, any ammunition or reloaded ammunition.end insert
This bill would add to the
list of misdemeanors, the conviction for which is subject to those prohibitions, misdemeanor offenses of violating thebegin delete 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, and a public offense committed for the benefit of a criminal street gangend deletebegin insert 10 year prohibition on possessing a firearm specified aboveend insert.
The bill would also apply the above 10-year prohibition to a person who has been convicted of 2 or more specified misdemeanors, or 2 or more convictions of a single specified misdemeanor, in a 3-year period involving intoxication or possession of certain
controlled substances for sale and would make a violation punishable as an infraction. The bill would impose a new 10-year prohibition to a person who commits another of those misdemeanors during the initial 10-year prohibition period, and would make a violation punishablebegin delete 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 fineend deletebegin insert as an infraction. The bill would also make it an infraction for a person prohibited from owning or possessing a firearm pursuant to these provisions to own, possess, or have under his or her custody or control, any ammunition or reloaded ammunitionend insert. By changing the definition of a crime,begin insert and by creating new crimes,end insert
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.
begin insert(4) This bill would incorporate changes to Section 8103 of the Welfare and Institutions Code proposed by AB 1131, that would become operative on the date this bill becomes operative only if AB 1131 and this bill are both chaptered and become effective on or before January 1, 2014, and this bill is chaptered last.
end insert(4)
end deletebegin insert(5)end insert 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:
The Legislature finds and declares that in order
2to protect the privacy of individuals ordered to obtain assisted
P4 1outpatient treatment, it is necessary that reports made by a court
2to the Department of Justice pursuant to Section 3 of this act be
3confidential, except as provided in this act.
Section 29805 of the Penal Code is amended to read:
(a) Except as provided in Section 29855 or subdivision
6(a) of Section 29800, any person who has been convicted of a
7misdemeanor violation of thisbegin delete sectionend deletebegin insert subdivisionend insert, Sectionbegin delete 69,end delete 71,
876, 136.1, 136.5, or 140, subdivisionbegin delete (b) orend delete (d) of Section 148,
9Section 171b, paragraph (1) of subdivision (a) of Section 171c,
10Section 171d,begin delete subdivision (a) or (d) of Section 186.22,end delete
Section
11186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5,begin delete 245.6,end delete 246.3,
12247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or 830.95,
13subdivision (a) of former Section 12100, as that section read at
14any time from when it was enacted by Section 3 of Chapter 1386
15of the Statutes of 1988 to when it was repealed by Section 18 of
16Chapter 23 of the Statutes of 1994, Section 17500, 17510, 25300,
1725800,begin delete 26500, 30300, 30305, 30306, 30310,end delete 30315, or 32625,
18subdivision (b) or (d) of Section 26100, or Section 27510, or
19Section 8100, 8101, or 8103 of the Welfare and Institutions Code,
20any firearm-related offense pursuant to Sections 871.5 and 1001.5
21of the Welfare and
Institutions Code,begin delete Section 25400 that is or of the
22punishable pursuant to paragraph (5) or (6) of subdivision (c) of
23Section 25400, Section 25850 that is punishable pursuant to
24paragraph (5) or (6) of subdivision (c) of Section 25850,end delete
25conduct punished in subdivision (c) of Section 27590, and who,
26within 10 years of the conviction, owns, purchases, receives, or
27has in possession or under custody or control, any firearm is guilty
28of a public offense, which shall be punishable by imprisonment
29in a county jail not exceeding one year or in the state prison, by a
30fine not exceeding one thousand dollars ($1,000), or by both that
31imprisonment and fine.
32(b) Except as provided in Section 29855, any person who has
33been convicted of misdemeanor violations
of two or more of any
34of the following offenses, or two or more misdemeanor violations
35of any one of the following offenses, within a three-year period
36and who, within 10 years of the second conviction, owns,
37purchases, receives, or has in possession or under custody or
38control, any firearm is guilty of an infractionbegin insert, punishable by a fine
39not exceeding two hundred fifty dollars ($250)end insert.
P5 1(1) Possession of a controlled substance with intent to sell in
2violation of Section 11357.5 of the Health and Safety Code.
3(2) Possession of a controlled substance with intent to sell in
4violation of paragraph (1) of subdivision (b) of Section 11375 of
5the Health and Safety Code.
6(3) Possession of a controlled substance with intent to sell in
7violation of Section 11379.2 of the Health and Safety Code.
8(4) Section 11550 of the Health and Safety Code.
9(5) Section 191.5.
10(6) Subdivision (f) of Section 647.
11(7) Section 23152 of the Vehicle Code.
12(8) Section 23153 of the Vehicle Code.
13(9) Section 23154 of the Vehicle Code.
14(c) Except as provided in Section 29855, any person who is
15prohibited pursuant to
subdivision (b) from owning, purchasing,
16receiving, or having in his or her custody or control any firearm,
17who is subsequently convicted of a misdemeanor violation of any
18offense specified in paragraphs (1) to (9), inclusive, of subdivision
19(b) during the prohibitory period specified in subdivision (b), and
20who, within 10 years of the subsequent conviction, owns,
21purchases, receives, or has in possession or under custody or
22control any firearm is guilty ofbegin delete a public offense, which shall be begin insert an
23punishable by imprisonment in a county jail not exceeding one
24year or in the state prison, by a fine not exceeding one thousand
25dollars ($1,000), or by both that imprisonment and fineend delete
26infraction, punishable by a fine not exceeding two hundred fifty
27dollars
($250)end insert.
28(d) The court, on forms prescribed by the Department of Justice,
29shall notify the department of persons subject to this section.
30However, the prohibition in this section may be reduced,
31eliminated, or conditioned as provided in Section 29855 or 29860.
begin insertSection 30305 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) (1) No person prohibited from owning or
34possessing a firearm under Chapter 2 (commencing with Section
3529800) or Chapter 3 (commencing with Section 29900) of Division
369 of this title, or Section 8100 or 8103 of the Welfare and
37Institutions Code, shall own, possess, or have under custody or
38control, any ammunition or reloaded ammunition.
39(2) begin deleteA end deletebegin insert(A)end insertbegin insert end insertbegin insertExcept as provided in subparagraph (B), a end insertviolation
40of this subdivision is punishable by imprisonment in a county jail
P6 1not to exceed one year or in the state prison, by a fine not to
exceed
2one thousand dollars ($1,000), or by both the fine and
3imprisonment.
4(B) If the person is prohibited from owning or possessing a
5firearm pursuant to subdivision (b) or (c) of Section 29805, a
6violation of this subdivision is an infraction, punishable by a fine
7not exceeding two hundred fifty dollars ($250).
8(b) (1) A person who is not prohibited by subdivision (a) from
9owning, possessing, or having under the person’s custody or
10control, any ammunition or reloaded ammunition, but who is
11enjoined from engaging in activity pursuant to an injunction issued
12pursuant to Section 3479 of the Civil Code against that person as
13a member of a criminal street gang, as defined in Section 186.22,
14may not own, possess, or have under the person’s custody or
15
control, any ammunition or reloaded ammunition.
16(2) A violation of this subdivision is a misdemeanor.
17(c) A violation of subdivision (a) or (b) is justifiable where all
18of the following conditions are met:
19(1) The person found the ammunition or reloaded ammunition
20or took the ammunition or reloaded ammunition from a person
21who was committing a crime against the person who found or took
22the ammunition or reloaded ammunition.
23(2) The person possessed the ammunition or reloaded
24ammunition no longer than was necessary to deliver or transport
25the ammunition or reloaded ammunition to a law enforcement
26agency for that agency’s disposition according to law.
27(3) The person is prohibited from
possessing any ammunition
28or reloaded ammunition solely because that person is prohibited
29from owning or possessing a firearm only by virtue of Chapter 2
30(commencing with Section 29800) of Division 9 or ammunition
31or reloaded ammunition because of subdivision (b).
32(d) Upon the trial for violating subdivision (a) or (b), the trier
33of fact shall determine whether the defendant is subject to the
34exemption created by subdivision (c). The defendant has the burden
35of proving by a preponderance of the evidence that the defendant
36is subject to the exemption provided by subdivision (c).
Section 8103 of the Welfare and Institutions Code is
39amended to read:
(a) (1) No person who after October 1, 1955, has been
2adjudicated by a court of any state to be a danger to others as a
3result of a mental disorder or mental illness, or who has been
4adjudicated to be a mentally disordered sex offender, shall purchase
5or receive, or attempt to purchase or receive, or have in his or her
6possession, custody, or control any firearm or any other deadly
7weapon unless there has been issued to the person a certificate by
8the court of adjudication upon release from treatment or at a later
9date stating that the person may possess a firearm or any other
10deadly weapon without endangering others, and the person has
11not, subsequent to the issuance of the certificate, again been
12adjudicated by a court to
be a danger to others as a result of a
13mental disorder or mental illness.
14(2) The court shall immediately notify the Department of Justice
15of the court order finding the individual to be a person described
16in paragraph (1). The court shall also notify the Department of
17Justice of any certificate issued as described in paragraph (1).
18(b) (1) No person who has been found, pursuant to Section
191026 of the Penal Code or the law of any other state or the United
20States, not guilty by reason of insanity of murder, mayhem, a
21violation of Section 207, 209, or 209.5 of the Penal Code in which
22the victim suffers intentionally inflicted great bodily injury,
23carjacking or robbery in which the victim suffers great bodily
24injury, a violation of Section 451 or 452 of the Penal Code
25
involving a trailer coach, as defined in Section 635 of the Vehicle
26Code, or any dwelling house, a violation of paragraph (1) or (2)
27of subdivision (a) of Section 262 or paragraph (2) or (3) of
28subdivision (a) of Section 261 of the Penal Code, a violation of
29Section 459 of the Penal Code in the first degree, assault with
30intent to commit murder, a violation of Section 220 of the Penal
31Code in which the victim suffers great bodily injury, a violation
32of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
33Penal Code, or of a felony involving death, great bodily injury, or
34an act which poses a serious threat of bodily harm to another
35person, or a violation of the law of any other state or the United
36States that includes all the elements of any of the above felonies
37as defined under California law, shall purchase or receive, or
38attempt to purchase or receive, or have in his or her possession
or
39under his or her custody or control any firearm or any other deadly
40weapon.
P8 1(2) The court shall immediately notify the Department of Justice
2of the court order finding the person to be a person described in
3paragraph (1).
4(c) (1) No person who has been found, pursuant to Section 1026
5of the Penal Code or the law of any other state or the United States,
6not guilty by reason of insanity of any crime other than those
7described in subdivision (b) shall purchase or receive, or attempt
8to purchase or receive, or shall have in his or her possession,
9custody, or control any firearm or any other deadly weapon unless
10the court of commitment has found the person to have recovered
11sanity, pursuant to Section 1026.2 of the Penal Code or the law of
12any other
state or the United States.
13(2) The court shall immediately notify the Department of Justice
14of the court order finding the person to be a person described in
15paragraph (1). The court shall also notify the Department of Justice
16when it finds that the person has recovered his or her sanity.
17(d) (1) No person found by a court to be mentally incompetent
18to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
19or the law of any other state or the United States, shall purchase
20or receive, or attempt to purchase or receive, or shall have in his
21or her possession, custody, or control, any firearm or any other
22deadly weapon, unless there has been a finding with respect to the
23person of restoration to competence to stand trial by the committing
24court,
pursuant to Section 1372 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 mentally incompetent
28as described in paragraph (1). The court shall also notify the
29Department of Justice when it finds that the person has recovered
30his or her competence.
31(e) (1) No person who has been placed under conservatorship
32by a court, pursuant to Section 5350 or the law of any other state
33or the United States, because the person is gravely disabled as a
34result of a mental disorder or impairment by chronic alcoholism,
35shall purchase or receive, or attempt to purchase or receive, or
36shall have in his or her possession, custody, or control, any firearm
37or
any other deadly weapon while under the conservatorship if, at
38the time the conservatorship was ordered or thereafter, the court
39which imposed the conservatorship found that possession of a
40firearm or any other deadly weapon by the person would present
P9 1a danger to the safety of the person or to others. Upon placing any
2person under conservatorship, and prohibiting firearm or any other
3deadly weapon possession by the person, the court shall notify the
4person of this prohibition.
5(2) The court shall immediately notify the Department of Justice
6of the court order placing the person under conservatorship and
7prohibiting firearm or any other deadly weapon possession by the
8person as described in paragraph (1). The notice shall include the
9date the conservatorship was imposed and the date the
10conservatorship is to be terminated. If the
conservatorship is
11subsequently terminated before the date listed in the notice to the
12Department of Justice or the court subsequently finds that
13possession of a firearm or any other deadly weapon by the person
14would no longer present a danger to the safety of the person or
15others, the court shall immediately notify the Department of Justice.
16(3) All information provided to the Department of Justice
17pursuant to paragraph (2) shall be kept confidential, separate, and
18apart from all other records maintained by the Department of
19Justice, and shall be used only to determine eligibility to purchase
20or possess firearms or other deadly weapons. Any person who
21knowingly furnishes that information for any other purpose is
22guilty of a misdemeanor. All the information concerning any person
23shall be destroyed upon receipt by the Department of Justice of
24notice
of the termination of conservatorship as to that person
25pursuant to paragraph (2).
26(f) (1) No person who has been (A) taken into custody as
27provided in Section 5150 because that person is a danger to himself,
28herself, or to others, (B) assessed within the meaning of Section
295151, and (C) admitted to a designated facility within the meaning
30of Sections 5151 and 5152 because that person is a danger to
31himself, herself, or others, shall own, possess, control, receive, or
32purchase, or attempt to own, possess, control, receive, or purchase
33any firearm for a period of five years after the person is released
34from the facility. A person described in the preceding sentence,
35however, may own, possess, control, receive, or purchase, or
36attempt to own, possess, control, receive, or purchase any firearm
37if the superior court has, pursuant to
paragraph (5), found that the
38people of the State of California have not met their burden pursuant
39to paragraph (6).
P10 1(2) (A) For each person subject to this subdivision, the facility
2shall immediately, on the date of admission, submit a report to the
3Department of Justice, on a form prescribed by the Department of
4Justice, containing information that includes, but is not limited to,
5the identity of the person and the legal grounds upon which the
6person was admitted to the facility.
7Any report submitted pursuant to this paragraph shall be
8confidential, except for purposes of the court proceedings described
9in this subdivision and for determining the eligibility of the person
10to own, possess, control, receive, or purchase a firearm.
11(B) Commencing July 1, 2012, facilities shall submit reports
12pursuant to this paragraph exclusively by electronic means, in a
13manner prescribed by the Department of Justice.
14(3) Prior to, or concurrent with, the discharge, the facility shall
15inform a person subject to this subdivision that he or she is
16prohibited from owning, possessing, controlling, receiving, or
17purchasing any firearm for a period of five years. Simultaneously,
18the facility shall inform the person that he or she may request a
19hearing from a court, as provided in this subdivision, for an order
20permitting the person to own, possess, control, receive, or purchase
21a firearm. The facility shall provide the person with a form for a
22request for a hearing. The Department of Justice shall prescribe
23the form. Where the person requests a hearing at the time of
24discharge,
the facility shall forward the form to the superior court
25unless the person states that he or she will submit the form to the
26superior court.
27(4) The Department of Justice shall provide the form upon
28request to any person described in paragraph (1). The Department
29of Justice shall also provide the form to the superior court in each
30county. A person described in paragraph (1) may make a single
31request for a hearing at any time during the five-year period. The
32request for hearing shall be made on the form prescribed by the
33department or in a document that includes equivalent language.
34(5) Any person who is subject to paragraph (1) who has
35requested a hearing from the superior court of his or her county
36of residence for an order that he or she may own, possess, control,
37receive, or
purchase firearms shall be given a hearing. The clerk
38of the court shall set a hearing date and notify the person, the
39Department of Justice, and the district attorney. The people of the
40State of California shall be the plaintiff in the proceeding and shall
P11 1be represented by the district attorney. Upon motion of the district
2attorney, or on its own motion, the superior court may transfer the
3hearing to the county in which the person resided at the time of
4his or her detention, the county in which the person was detained,
5or the county in which the person was evaluated or treated. Within
6seven days after the request for a hearing, the Department of Justice
7shall file copies of the reports described in this section with the
8superior court. The reports shall be disclosed upon request to the
9person and to the district attorney. The court shall set the hearing
10within 30 days of receipt of the request for a
hearing. Upon
11showing good cause, the district attorney shall be entitled to a
12continuance not to exceed 14 days after the district attorney was
13notified of the hearing date by the clerk of the court. If additional
14
continuances are granted, the total length of time for continuances
15shall not exceed 60 days. The district attorney may notify the
16county mental health director of the hearing who shall provide
17information about the detention of the person that may be relevant
18to the court and shall file that information with the superior court.
19That information shall be disclosed to the person and to the district
20attorney. The court, upon motion of the person subject to paragraph
21(1) establishing that confidential information is likely to be
22discussed during the hearing that would cause harm to the person,
23shall conduct the hearing in camera with only the relevant parties
24present, unless the court finds that the public interest would be
25better served by conducting the hearing in public. Notwithstanding
26any other law, declarations, police reports, including criminal
27history information, and any other
material and relevant evidence
28that is not excluded under Section 352 of the Evidence Code shall
29be admissible at the hearing under this section.
30(6) The people shall bear the burden of showing by a
31preponderance of the evidence that the person would not be likely
32to use firearms in a safe and lawful manner.
33(7) If the court finds at the hearing set forth in paragraph (5)
34that the people have not met their burden as set forth in paragraph
35(6), the court shall order that the person shall not be subject to the
36five-year prohibition in this section on the ownership, control,
37receipt, possession, or purchase of firearms. A copy of the order
38shall be submitted to the Department of Justice. Upon receipt of
39the order, the Department of Justice shall delete any reference to
P12 1the prohibition
against firearms from the person’s state mental
2health firearms prohibition system information.
3(8) Where the district attorney declines or fails to go forward
4
in the hearing, the court shall order that the person shall not be
5subject to the five-year prohibition required by this subdivision
6on the ownership, control, receipt, possession, or purchase of
7firearms. A copy of the order shall be submitted to the Department
8of Justice. Upon receipt of the order, the Department of Justice
9shall, within 15 days, delete any reference to the prohibition against
10firearms from the person’s state mental health firearms prohibition
11system information.
12(9) Nothing in this subdivision shall prohibit the use of reports
13filed pursuant to this section to determine the eligibility of persons
14to own, possess, control, receive, or purchase a firearm if the person
15is the subject of a criminal investigation, a part of which involves
16the ownership, possession, control, receipt, or purchase of a
17firearm.
18(g) (1) No person who has been certified for intensive treatment
19under Section 5250, 5260, or 5270.15 shall own, possess, control,
20receive, or purchase, or attempt to own, possess, control, receive,
21or purchase, any firearm for a period of five years.
22Any person who meets the criteria contained in subdivision (e)
23or (f) who is released from intensive treatment shall nevertheless,
24if applicable, remain subject to the prohibition contained in
25subdivision (e) or (f).
26(2) (A) For each person certified for intensive treatment under
27paragraph (1), the facility shall immediately submit a report to the
28Department of Justice, on a form prescribed by the department,
29containing information regarding the person,
including, but not
30limited to, the legal identity of the person and the legal grounds
31upon which the person was certified. Any report submitted pursuant
32to this paragraph shall only be used for the purposes specified in
33paragraph (2) of subdivision (f).
34(B) Commencing July 1, 2012, facilities shall submit reports
35pursuant to this paragraph exclusively by electronic means, in a
36manner prescribed by the Department of Justice.
37(3) Prior to, or concurrent with, the discharge of each person
38certified for intensive treatment under paragraph (1), the facility
39shall inform the person of that information specified in paragraph
40(3) of subdivision (f).
P13 1(4) Any person who is subject to paragraph (1) may petition the
2superior court
of his or her county of residence for an order that
3he or she may own, possess, control, receive, or purchase firearms.
4At the time the petition is filed, the clerk of the court shall set a
5hearing date and notify the person, the Department of Justice, and
6the district attorney. The people of the State of California shall be
7the respondent in the proceeding and shall be represented by the
8district attorney. Upon motion of the district attorney, or on its
9own motion, the superior court may transfer the petition to the
10county in which the person resided at the time of his or her
11detention, the county in which the person was detained, or the
12county in which the person was evaluated or treated. Within seven
13days after receiving notice of the petition, the Department of Justice
14shall file copies of the reports described in this section with the
15superior court. The reports shall be disclosed upon request to the
16person
and to the district attorney. The district attorney shall be
17entitled to a continuance of the hearing to a date of not less than
1814 days after the district attorney was notified of the hearing date
19by the clerk of the court. The district attorney may notify the county
20mental health director of the petition, and the county mental health
21director shall provide information about the detention of the person
22that may be relevant to the court and shall file that information
23with the superior court. That information shall be disclosed to the
24person and to the district attorney. The court, upon motion of the
25person subject to paragraph (1) establishing that confidential
26information is likely to be discussed during the hearing that would
27cause harm to the person, shall conduct the hearing in camera with
28only the relevant parties present, unless the court finds that the
29public interest would be better served by
conducting the hearing
30in public. Notwithstanding any other provision of law, any
31declaration, police reports, including criminal history information,
32and any other material and relevant evidence that is not excluded
33under Section 352 of the Evidence Code, shall be admissible at
34the hearing under this section. If the court finds by a preponderance
35of the evidence that the person would be likely to use firearms in
36a safe and lawful manner, the court may order that the person may
37own, control, receive, possess, or purchase firearms. A copy of
38the order shall be submitted to the Department of Justice. Upon
39receipt of the order, the Department of Justice shall delete any
P13 1reference to the prohibition against firearms from the person’s
2state mental health firearms prohibition system information.
3(h) For all persons identified in subdivisions (f) and
(g), facilities
4shall report to the Department of Justice as specified in those
5subdivisions, except facilities shall not report persons under
6subdivision (g) if the same persons previously have been reported
7under subdivision (f).
8Additionally, all facilities shall report to the Department of
9Justice upon the discharge of persons from whom reports have
10been submitted pursuant to subdivision (f) or (g). However, a report
11shall not be filed for persons who are discharged within 31 days
12after the date of admission.
13(i) (1) No person who has been ordered by a court to obtain
14assisted outpatient treatment pursuant to Article 9 (commencing
15with Section 5345) of Chapter 2 of Part 1 of Division 5 shall
16purchase or receive, or attempt to purchase or receive, or shall
17have in his
or her possession, custody, or control, any firearm or
18any other deadly weapon while subject to assisted outpatient
19treatment. Upon placing any person under assisted outpatient
20treatment, the court shall notify the person of this prohibition.
21(2) The court shall notify the Department of Justice of the court
22order placing the person in assisted outpatient treatment and
23prohibiting firearm or any other deadly weapon possession by the
24person described in paragraph (1) within two days of the order.
25The court shall also notify the Department of Justice when the
26person subject to paragraph (1) is no longer subject to assisted
27outpatient treatment. Any report submitted pursuant to this
28paragraph shall be confidential, except for purposes of the court
29proceedings specified in this subdivision and for purposes of
30determining the eligibility of the
person to own, possess, control,
31receive, or purchase a firearm.
32(j) Every person who owns or possesses or has under his or her
33custody or control, or purchases or receives, or attempts to purchase
34or receive, any firearm or any other deadly weapon in violation of
35this section shall be punished by imprisonment pursuant to
36subdivision (h) of Section 1170 of the Penal Code or in a county
37jail for not more than one year.
38(k) “Deadly weapon,” as used in this section, has the meaning
39prescribed by Section 8100.
begin insertSection 8103 of the end insertbegin insertWelfare and Institutions Codeend insert
2begin insert is amended to read:end insert
(a) (1) No person who after October 1, 1955, has been
4adjudicated by a court of any state to be a danger to others as a
5result of a mental disorder or mental illness, or who has been
6adjudicated to be a mentally disordered sex offender, shall purchase
7or receive, or attempt to purchase or receive, or have in his or her
8possession, custody, or control any firearm or any other deadly
9weapon unless there has been issued to the person a certificate by
10the court of adjudication upon release from treatment or at a later
11date stating that the person may possess a firearm or any other
12deadly weapon without endangering others, and the person has
13not, subsequent to the issuance of the certificate, again been
14adjudicated by a court to be a danger to others as a result of a
15mental disorder or mental illness.
16(2) The court shall immediately notify the Department of Justice
17of the court order finding the individual to be a person described
18in paragraph (1). The court shall alsobegin insert immediatelyend insert notify the
19Department of Justice of any certificate issued as described in
20paragraph (1).
21(b) (1) No person who has been found, pursuant to Section
221026 of the Penal Code or the law of any other state or the United
23States, not guilty by reason of insanity of murder, mayhem, a
24violation of Section 207, 209, or 209.5 of the Penal Code in which
25the victim suffers intentionally inflicted great bodily injury,
26carjacking or robbery in which the victim suffers great bodily
27injury, a violation of Section 451 or 452 of the Penal Code
28involving a trailer coach, as defined in Section 635
of the Vehicle
29Code, or any dwelling house, a violation of paragraph (1) or (2)
30of subdivision (a) of Section 262 or paragraph (2) or (3) of
31subdivision (a) of Section 261 of the Penal Code, a violation of
32Section 459 of the Penal Code in the first degree, assault with
33intent to commit murder, a violation of Section 220 of the Penal
34Code in which the victim suffers great bodily injury, a violation
35of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
36Penal Code, or of a felony involving death, great bodily injury, or
37an act which poses a serious threat of bodily harm to another
38person, or a violation of the law of any other state or the United
39States that includes all the elements of any of the above felonies
40as defined under California law, shall purchase or receive, or
P16 1attempt to purchase or receive, or have in his or her possession or
2under his or her custody or control any firearm or any other deadly
3weapon.
4(2) The court shall
immediately notify the Department of Justice
5of the court order finding the person to be a person described in
6paragraph (1).
7(c) (1) No person who has been found, pursuant to Section 1026
8of the Penal Code or the law of any other state or the United States,
9not guilty by reason of insanity of any crime other than those
10described in subdivision (b) shall purchase or receive, or attempt
11to purchase or receive, or shall have in his or her possession,
12custody, or control any firearm or any other deadly weapon unless
13the court of commitment has found the person to have recovered
14sanity, pursuant to Section 1026.2 of the Penal Code or the law of
15any other state or the United States.
16(2) The court shall immediately notify the Department of Justice
17of the court order finding the person to be a person described in
18paragraph (1). The court shall also notify the
Department of Justice
19when it finds that the person has recovered his or her sanity.
20(d) (1) No person found by a court to be mentally incompetent
21to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
22or the law of any other state or the United States, shall purchase
23or receive, or attempt to purchase or receive, or shall have in his
24or her possession, custody, or control, any firearm or any other
25deadly weapon, unless there has been a finding with respect to the
26person of restoration to competence to stand trial by the committing
27court, pursuant to Section 1372 of the Penal Code or the law of
28any other state or the United States.
29(2) The court shall immediately notify the Department of Justice
30of the court order finding the person to be mentally incompetent
31as described in paragraph (1). The court shall also notify the
32Department of Justice
when it finds that the person has recovered
33his or her competence.
34(e) (1) No person who has been placed under conservatorship
35by a court, pursuant to Section 5350 or the law of any other state
36or the United States, because the person is gravely disabled as a
37result of a mental disorder or impairment by chronic alcoholism,
38shall purchase or receive, or attempt to purchase or receive, or
39shall have in his or her possession, custody, or control, any firearm
40or any other deadly weapon while under the conservatorship if, at
P17 1the time the conservatorship was ordered or thereafter, the court
2which imposed the conservatorship found that possession of a
3firearm or any other deadly weapon by the person would present
4a danger to the safety of the person or to others. Upon placing any
5person under conservatorship, and prohibiting firearm or any other
6deadly weapon possession by the person, the court shall notify the
7person of this
prohibition.
8(2) The court shall immediately notify the Department of Justice
9of the court order placing the person under conservatorship and
10prohibiting firearm or any other deadly weapon possession by the
11person as described in paragraph (1). The notice shall include the
12date the conservatorship was imposed and the date the
13conservatorship is to be terminated. If the conservatorship is
14subsequently terminated before the date listed in the notice to the
15Department of Justice or the court subsequently finds that
16possession of a firearm or any other deadly weapon by the person
17would no longer present a danger to the safety of the person or
18others, the court shall immediately notify the Department of Justice.
19(3) All information provided to the Department of Justice
20pursuant to paragraph (2) shall be kept confidential, separate, and
21apart from all other records maintained by the
Department of
22Justice, and shall be used only to determine eligibility to purchase
23or possess firearms or other deadly weapons. Any person who
24knowingly furnishes that information for any other purpose is
25guilty of a misdemeanor. All the information concerning any person
26shall be destroyed upon receipt by the Department of Justice of
27notice of the termination of conservatorship as to that person
28pursuant to paragraph (2).
29(f) (1) No person who has been (A) taken into custody as
30provided in Section 5150 because that person is a danger to himself,
31herself, or to others, (B) assessed within the meaning of Section
325151, and (C) admitted to a designated facility within the meaning
33of Sections 5151 and 5152 because that person is a danger to
34himself, herself, or others, shall own, possess, control, receive, or
35purchase, or attempt to own, possess, control, receive, or purchase
36any firearm for a period of five years after the
person is released
37from the facility. A person described in the preceding sentence,
38however, may own, possess, control, receive, or purchase, or
39attempt to own, possess, control, receive, or purchase any firearm
40if the superior court has, pursuant to paragraph (5), found that the
P18 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
15manner 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
P19 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 ofbegin insert
firearms, and that person shall
40comply with the procedure described in Chapter 2 (commencing
P20 1with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal
2Code for the return of anyend insert firearms. A copy of the order shall be
3submitted to the Department of Justice. Upon receipt of the order,
4the Department of Justice shall delete any reference to the
5prohibition against firearms from the person’s state mental health
6firearms prohibition system information.
7(8) Where the district attorney declines or fails to go forward
8in the hearing, the court shall order that the person shall not be
9subject to the five-year prohibition required by this subdivision
10on the ownership, control, receipt, possession, or purchase of
11firearms. A copy of the order shall be submitted to the Department
12of Justice. Upon receipt of the order, the Department of Justice
13shall, within 15 days, delete any reference to the
prohibition against
14firearms from the person’s state mental health firearms prohibition
15system informationbegin insert, end insertbegin insertand that person shall comply with the
16procedure described in Chapter 2 (commencing with Section
1733850) of Division 11 of Title 4 of Part 6 of the Penal Code for
18the return of any firearmsend insert.
19(9) Nothing in this subdivision shall prohibit the use of reports
20filed pursuant to this section to determine the eligibility of persons
21to own, possess, control, receive, or purchase a firearm if the person
22is the subject of a criminal investigation, a part of which involves
23the ownership, possession, control, receipt, or purchase of a
24firearm.
25(g) (1) No
person who has been certified for intensive treatment
26under Section 5250, 5260, or 5270.15 shall own, possess, control,
27receive, or purchase, or attempt to own, possess, control, receive,
28or purchase, any firearm for a period of five years.
29Any person who meets the criteria contained in subdivision (e)
30or (f) who is released from intensive treatment shall nevertheless,
31if applicable, remain subject to the prohibition contained in
32subdivision (e) or (f).
33(2) (A) For each person certified for intensive treatment under
34paragraph (1), the facility shall immediately submit a report to the
35Department of Justice, on a form prescribed by the department,
36containing information regarding the person, including, but not
37limited to, the legal identity of the person and the legal grounds
38upon which the person was certified. Any report submitted pursuant
39to this paragraph shall only be used for
the purposes specified in
40paragraph (2) of subdivision (f).
P21 1(B) Commencing July 1, 2012, facilities shall submit reports
2pursuant to this paragraph exclusively by electronic means, in a
3manner prescribed by the Department of Justice.
4(3) Prior to, or concurrent with, the discharge of each person
5certified for intensive treatment under paragraph (1), the facility
6shall inform the person of that information specified in paragraph
7(3) of subdivision (f).
8(4) Any person who is subject to paragraph (1) may petition the
9superior court of his or her county of residence for an order that
10he or she may own, possess, control, receive, or purchase firearms.
11At the time the petition is filed, the clerk of the court shall set a
12hearing date and notify the person, the Department of Justice, and
13the district attorney. The people of
the State of California shall be
14the respondent in the proceeding and shall be represented by the
15district attorney. Upon motion of the district attorney, or on its
16own motion, the superior court may transfer the petition to the
17county in which the person resided at the time of his or her
18detention, the county in which the person was detained, or the
19county in which the person was evaluated or treated. Within seven
20days after receiving notice of the petition, the Department of Justice
21shall file copies of the reports described in this section with the
22superior court. The reports shall be disclosed upon request to the
23person and to the district attorney. The district attorney shall be
24entitled to a continuance of the hearing to a date of not less than
2514 days after the district attorney was notified of the hearing date
26by the clerk of the court. The district attorney may notify the county
27mental health director of the petition, and the county mental health
28director shall provide information about the
detention of the person
29that may be relevant to the court and shall file that information
30with the superior court. That information shall be disclosed to the
31person and to the district attorney. The court, upon motion of the
32person subject to paragraph (1) establishing that confidential
33information is likely to be discussed during the hearing that would
34cause harm to the person, shall conduct the hearing in camera with
35only the relevant parties present, unless the court finds that the
36public interest would be better served by conducting the hearing
37in public. Notwithstanding any other provision of law, any
38declaration, police reports, including criminal history information,
39and any other material and relevant evidence that is not excluded
40under Section 352 of the Evidence Code, shall be admissible at
P22 1the hearing under this section. If the court finds by a preponderance
2of the evidence that the person would be likely to use firearms in
3a safe and lawful manner, the court may order that the person may
4own,
control, receive, possess, or purchasebegin insert firearms, and that
5person shall comply with the procedure described in Chapter 2
6(commencing with Section 33850) of Division 11 of Title 4 of Part
76 of the Penal Code for the return of anyend insert
firearms. A copy of the
8order shall be submitted to the Department of Justice. Upon receipt
9of the order, the Department of Justice shall delete any reference
10to the prohibition against firearms from the person’s state mental
11health firearms prohibition system information.
12(h) begin insert(1)end insertbegin insert end insert For all persons identified in subdivisions (f) and (g),
13facilities shall report to the Department of Justice as specified in
14those subdivisions, except facilities shall not report persons under
15subdivision (g) if the same persons previously have been reported
16under subdivision (f).
17 Additionally,
end delete
18begin insert(2)end insertbegin insert end insertbegin insertAdditionally,end insert all facilities shall report to the Department of
19Justice upon the discharge of persons from whom reports have
20been submitted pursuant to subdivision (f) or (g). However, a report
21shall not be filed for persons who are discharged within 31 days
22after the date of admission.
23(i) (1) No person who has been ordered by a court to obtain
24assisted outpatient treatment pursuant to Article 9 (commencing
25with Section 5345) of Chapter 2 of Part 1 of Division 5 shall
26purchase or receive, or attempt to purchase or receive, or shall
27have in his or her possession,
custody, or control, any firearm or
28any other deadly weapon while subject to assisted outpatient
29treatment. Upon placing any person under assisted outpatient
30treatment, the court shall notify the person of this prohibition.
31(2) The court shall notify the Department of Justice of the court
32order placing the person in assisted outpatient treatment and
33prohibiting firearm or any other deadly weapon possession by the
34person described in paragraph (1) within two days of the order.
35The court shall also notify the Department of Justice when the
36person subject to paragraph (1) is no longer subject to assisted
37outpatient treatment. Any report submitted pursuant to this
38paragraph shall be confidential, except for purposes of the court
39
proceedings specified in this subdivision and for purposes of
P23 1determining the eligibility of the person to own, possess, control,
2receive, or purchase a firearm.
3(i)
end delete
4begin insert(j)end insert Every person who owns or possesses or has under his or her
5custody or control, or purchases or receives, or attempts to purchase
6or receive, any firearm or any other deadly weapon in violation of
7this section shall be punished by imprisonment pursuant to
8subdivision (h) of Section 1170 of the Penal Code or in a county
9jail for not more than one year.
10(j)
end delete
11begin insert(k)end insert “Deadly weapon,” as used in this section, has the meaning
12prescribed by Section 8100.
13(l) For purposes of this section, “immediately” means a period
14of time not exceeding 24 hours.
15(m) Any notice or report required to be submitted to the
16Department of Justice pursuant to this section shall be submitted
17in an electronic format, in a manner prescribed by the Department
18of Justice.
Section 4.5 of this bill incorporates amendments to
20Section 8103 of the Welfare and Institutions Code proposed by
21both this bill and Assembly Bill 1131. It shall only become
22operative if (1) both bills are enacted and become effective on or
23before January 1, 2014, (2) each bill amends Section 8103 of the
24Welfare and Institutions Code, and (3) this bill is enacted after
25Assembly Bill 1131, in which case Section 4 of this bill shall not
26become operative.
No reimbursement is required by this act pursuant to
29Section 6 of Article XIII B of the California Constitution because
30the only costs that may be incurred by a local agency or school
31district will be incurred because this act creates a new crime or
32infraction, eliminates a crime or infraction, or changes the penalty
33for a crime or infraction, within the meaning of Section 17556 of
34the Government Code, or changes the definition of a crime within
35the meaning of Section 6 of Article XIII B of the California
36Constitution.
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93