Amended in Assembly April 6, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2478


Introduced by Assembly Member Melendez

February 19, 2016


An act to amendbegin delete Section 27590end deletebegin insert Sections 1203, 27590, and 29805end insert of the Penal Code, relating to firearms, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 2478, as amended, Melendez. Firearms: violations.

Existing law prohibits specified persons from owning, purchasing, receiving, or having in his or her possession, any firearm. Existing law prohibits a person, corporation, or firm from knowingly selling, supplying, delivering, or giving possession or control of a firearm to one of those prohibited persons, and makes a violation of that prohibition a felony punishable by imprisonment for 2, 3, or 4 years in the county jail.

This bill would make that offense punishable by imprisonment for 2, 3, or 4 years in the state prison.

Existing law prohibits a person, corporation, or firearms dealer from selling, supplying, delivering, or giving possession or control of a firearm to anyone whom the person, corporation, or dealer has cause to believe is a prohibited person, and makes a violation of that prohibition punishable as a felony or misdemeanor subject to imprisonment in the county jail or by a fine not to exceed $1,000, or by both that fine and imprisonment. Under existing law, for each felony case, a court is required to hold, and a prosecutor is required to attend, a preliminary hearing.

This bill would make that offense a felony punishable by imprisonment for 2, 3, or 4 years in the state prison. By imposing additional duties on local prosecutors by increasing the number of preliminary hearings, and by increasing the penalties of an existing crime, this bill would impose a state-mandated local program.

Existing law prohibits a person, corporation, or dealer from selling, loaning, or transferring a firearm to anyone whom the person, corporation, or dealer knows or has cause to believe is not the actual purchaser or transferee of the firearm, or to anyone who is not the one actually being loaned the firearm, if the person, corporation, or dealer has knowledge that the firearm is to be subsequently sold, loaned, or transferred to avoid provisions of law requiring firearms transfers to be conducted through a firearms dealer and other requirements pertaining to dealer transactions, or to avoid provisions establishing exemptions from those requirements, as specified. Existing law makes this offense punishable as a felony or misdemeanor subject to imprisonment in the county jail or by a fine not to exceed $1,000, or by both that fine and imprisonment.

This bill would make that offense a felony punishable by imprisonment for 16 months, or 2 or 3 years in the state prison. By imposing additional duties on local prosecutors, this bill would impose a state-mandated local program.

Existing law prohibits a person, corporation, or firearms dealer from acquiring a firearm for the purpose of selling, loaning, or transferring the firearm if, for a dealer, he or she has the intent to transfer the firearm to a minor or to evade specified requirements on the transfer of firearms, or in the case of a person or corporation, the person or corporation intends to violate the requirement, or provisions of an exception to the requirement, that the transaction be conducted through a licensed firearms dealer. Existing law makes this offense punishable as a misdemeanor by imprisonment in the county jail not exceeding one year, or as a felony punishable by imprisonment in the county jail for 16 months, or 2 or 3 years, or by a fine not to exceed $1,000, or by both that fine and imprisonment.

This bill would make that offense punishable as a felony by imprisonment for 16 months, or 2 or 3 years in the state prison. By imposing additional duties on local prosecutors, this bill would impose a state-mandated local program.

The bill would appropriatebegin delete an unspecified sumend deletebegin insert $2,200,000end insert from the General Fund to the Department of Justice for vertical prosecution, as defined, of those offenses described above, by the department. The bill would require the department to submit a report to the Legislature and the Governor, on or before January 1, 2020, which details the number of prosecutions filed and convictions obtained by the department for the offenses described above.

begin insert

The bill would also make conforming changes.

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: 23. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes.

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

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1203 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

1203.  

(a) As used in this code, “probation” means the
4suspension of the imposition or execution of a sentence and the
5order of conditional and revocable release in the community under
6the supervision of a probation officer. As used in this code,
7“conditional sentence” means the suspension of the imposition or
8execution of a sentence and the order of revocable release in the
9community subject to conditions established by the court without
10the supervision of a probation officer. It is the intent of the
11Legislature that both conditional sentence and probation are
12authorized whenever probation is authorized in any code as a
13sentencing option for infractions or misdemeanors.

14(b) (1) Except as provided in subdivision (j), if a person is
15convicted of a felony and is eligible for probation, before judgment
16is pronounced, the court shall immediately refer the matter to a
17probation officer to investigate and report to the court, at a specified
18time, upon the circumstances surrounding the crime and the prior
19history and record of the person, which may be considered either
20in aggravation or mitigation of the punishment.

21(2) (A) The probation officer shall immediately investigate and
22make a written report to the court of his or her findings and
23recommendations, including his or her recommendations as to the
P4    1granting or denying of probation and the conditions of probation,
2if granted.

3(B) Pursuant to Section 828 of the Welfare and Institutions
4Code, the probation officer shall include in his or her report any
5information gathered by a law enforcement agency relating to the
6taking of the defendant into custody as a minor, which shall be
7considered for purposes of determining whether adjudications of
8commissions of crimes as a juvenile warrant a finding that there
9are circumstances in aggravation pursuant to Section 1170 or to
10deny probation.

11(C) If the person was convicted of an offense that requires him
12or her to register as a sex offender pursuant to Sections 290 to
13290.023, inclusive, or if the probation report recommends that
14registration be ordered at sentencing pursuant to Section 290.006,
15the probation officer’s report shall include the results of the
16State-Authorized Risk Assessment Tool for Sex Offenders
17(SARATSO) administered pursuant to Sections 290.04 to 290.06,
18inclusive, if applicable.

19(D) The probation officer may also include in the report his or
20her recommendation of both of the following:

21(i) The amount the defendant should be required to pay as a
22restitution fine pursuant to subdivision (b) of Section 1202.4.

23(ii) Whether the court shall require, as a condition of probation,
24restitution to the victim or to the Restitution Fund and the amount
25thereof.

26(E) The report shall be made available to the court and the
27prosecuting and defense attorneys at least five days, or upon request
28of the defendant or prosecuting attorney nine days, prior to the
29time fixed by the court for the hearing and determination of the
30report, and shall be filed with the clerk of the court as a record in
31the case at the time of the hearing. The time within which the report
32shall be made available and filed may be waived by written
33stipulation of the prosecuting and defense attorneys that is filed
34with the court or an oral stipulation in open court that is made and
35entered upon the minutes of the court.

36(3) At a time fixed by the court, the court shall hear and
37determine the application, if one has been made, or, in any case,
38the suitability of probation in the particular case. At the hearing,
39the court shall consider any report of the probation officer,
40including the results of the SARATSO, if applicable, and shall
P5    1make a statement that it has considered the report, which shall be
2filed with the clerk of the court as a record in the case. If the court
3determines that there are circumstances in mitigation of the
4punishment prescribed by law or that the ends of justice would be
5served by granting probation to the person, it may place the person
6on probation. If probation is denied, the clerk of the court shall
7immediately send a copy of the report to the Department of
8Corrections and Rehabilitation at the prison or other institution to
9which the person is delivered.

10(4) The preparation of the report or the consideration of the
11report by the court may be waived only by a written stipulation of
12the prosecuting and defense attorneys that is filed with the court
13or an oral stipulation in open court that is made and entered upon
14the minutes of the court, except that a waiver shall not be allowed
15unless the court consents thereto. However, if the defendant is
16ultimately sentenced and committed to the state prison, a probation
17report shall be completed pursuant to Section 1203c.

18(c) If a defendant is not represented by an attorney, the court
19shall order the probation officer who makes the probation report
20to discuss its contents with the defendant.

21(d) If a person is convicted of a misdemeanor, the court may
22either refer the matter to the probation officer for an investigation
23and a report or summarily pronounce a conditional sentence. If
24the person was convicted of an offense that requires him or her to
25register as a sex offender pursuant to Sections 290 to 290.023,
26inclusive, or if the probation officer recommends that the court,
27at sentencing, order the offender to register as a sex offender
28pursuant to Section 290.006, the court shall refer the matter to the
29probation officer for the purpose of obtaining a report on the results
30of the State-Authorized Risk Assessment Tool for Sex Offenders
31administered pursuant to Sections 290.04 to 290.06, inclusive, if
32applicable, which the court shall consider. If the case is not referred
33to the probation officer, in sentencing the person, the court may
34consider any information concerning the person that could have
35been included in a probation report. The court shall inform the
36person of the information to be considered and permit him or her
37to answer or controvert the information. For this purpose, upon
38the request of the person, the court shall grant a continuance before
39the judgment is pronounced.

P6    1(e) Except in unusual cases where the interests of justice would
2best be served if the person is granted probation, probation shall
3not be granted to any of the following persons:

4(1) Unless the person had a lawful right to carry a deadly
5weapon, other than a firearm, at the time of the perpetration of the
6crime or his or her arrest, any person who has been convicted of
7arson, robbery, carjacking, burglary, burglary with explosives,
8rape with force or violence, torture, aggravated mayhem, murder,
9attempt to commit murder, trainwrecking, kidnapping, escape from
10the state prison, or a conspiracy to commit one or more of those
11crimes and who was armed with the weapon at either of those
12times.

13(2) Any person who used, or attempted to use, a deadly weapon
14upon a human being in connection with the perpetration of the
15crime of which he or she has been convicted.

16(3) Any person who willfully inflicted great bodily injury or
17torture in the perpetration of the crime of which he or she has been
18convicted.

19(4) Any person who has been previously convicted twice in this
20state of a felony or in any other place of a public offense which,
21if committed in this state, would have been punishable as a felony.

22(5) Unless the person has never been previously convicted once
23in this state of a felony or in any other place of a public offense
24which, if committed in this state, would have been punishable as
25a felony, any person who has been convicted of burglary with
26explosives, rape with force or violence, torture, aggravated
27mayhem, murder, attempt to commit murder, trainwrecking,
28extortion, kidnapping, escape from the state prison, a violation of
29Section 286, 288, 288a, or 288.5, or a conspiracy to commit one
30or more of those crimes.

31(6) Any person who has been previously convicted once in this
32state of a felony or in any other place of a public offense which,
33if committed in this state, would have been punishable as a felony,
34if he or she committed any of the following acts:

35(A) Unless the person had a lawful right to carry a deadly
36weapon at the time of the perpetration of the previous crime or his
37or her arrest for the previous crime, he or she was armed with a
38weapon at either of those times.

P7    1(B) The person used, or attempted to use, a deadly weapon upon
2a human being in connection with the perpetration of the previous
3crime.

4(C) The person willfully inflicted great bodily injury or torture
5in the perpetration of the previous crime.

6(7) Any public official or peace officer of this state or any city,
7county, or other political subdivision who, in the discharge of the
8duties of his or her public office or employment, accepted or gave
9or offered to accept or give any bribe, embezzled public money,
10or was guilty of extortion.

11(8) Any person who knowingly furnishes or gives away
12phencyclidine.

13(9) Any person who intentionally inflicted great bodily injury
14in the commission of arson under subdivision (a) of Section 451
15or who intentionally set fire to, burned, or caused the burning of,
16an inhabited structure or inhabited property in violation of
17subdivision (b) of Section 451.

18(10) Any person who, in the commission of a felony, inflicts
19great bodily injury or causes the death of a human being by the
20discharge of a firearm from or at an occupied motor vehicle
21proceeding on a public street or highway.

22(11) Any person who possesses a short-barreled rifle or a
23short-barreled shotgun under Section 33215, a machinegun under
24Section 32625, or a silencer under Section 33410.

25(12) Any person who is convicted of violating Section 8101 of
26the Welfare and Institutions Code.

27(13) Any person who is described in subdivisionbegin delete (b) or (c)end deletebegin insert (b),
28(c), (f), or (g)end insert
of Section 27590.

29(f) When probation is granted in a case which comes within
30subdivision (e), the court shall specify on the record and shall enter
31on the minutes the circumstances indicating that the interests of
32justice would best be served by that disposition.

33(g) If a person is not eligible for probation, the judge shall refer
34the matter to the probation officer for an investigation of the facts
35relevant to determination of the amount of a restitution fine
36pursuant to subdivision (b) of Section 1202.4 in all cases where
37the determination is applicable. The judge, in his or her discretion,
38may direct the probation officer to investigate all facts relevant to
39the sentencing of the person. Upon that referral, the probation
40officer shall immediately investigate the circumstances surrounding
P8    1the crime and the prior record and history of the person and make
2a written report to the court of his or her findings. The findings
3shall include a recommendation of the amount of the restitution
4fine as provided in subdivision (b) of Section 1202.4.

5(h) If a defendant is convicted of a felony and a probation report
6is prepared pursuant to subdivision (b) or (g), the probation officer
7may obtain and include in the report a statement of the comments
8of the victim concerning the offense. The court may direct the
9probation officer not to obtain a statement if the victim has in fact
10testified at any of the court proceedings concerning the offense.

11(i) A probationer shall not be released to enter another state
12unless his or her case has been referred to the Administrator of the
13Interstate Probation and Parole Compacts, pursuant to the Uniform
14Act for Out-of-State Probationer or Parolee Supervision (Article
153 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
164) and the probationer has reimbursed the county that has
17jurisdiction over his or her probation case the reasonable costs of
18 processing his or her request for interstate compact supervision.
19The amount and method of reimbursement shall be in accordance
20with Section 1203.1b.

21(j) In any court where a county financial evaluation officer is
22available, in addition to referring the matter to the probation officer,
23the court may order the defendant to appear before the county
24financial evaluation officer for a financial evaluation of the
25defendant’s ability to pay restitution, in which case the county
26financial evaluation officer shall report his or her findings regarding
27restitution and other court-related costs to the probation officer on
28the question of the defendant’s ability to pay those costs.

29Any order made pursuant to this subdivision may be enforced
30as a violation of the terms and conditions of probation upon willful
31failure to pay and at the discretion of the court, may be enforced
32in the same manner as a judgment in a civil action, if any balance
33remains unpaid at the end of the defendant’s probationary period.

34(k) Probation shall not be granted to, nor shall the execution of,
35or imposition of sentence be suspended for, any person who is
36convicted of a violent felony, as defined in subdivision (c) of
37Section 667.5, or a serious felony, as defined in subdivision (c) of
38Section 1192.7, and who was on probation for a felony offense at
39the time of the commission of the new felony offense.

P9    1

begin deleteSECTION 1.end delete
2
begin insertSEC. 2.end insert  

Section 27590 of the Penal Code is amended to read:

3

27590.  

(a) Except as provided in subdivision (b), (c), or (e),
4a violation of this article is a misdemeanor.

5(b) If any of the following circumstances apply, a violation of
6this article is punishable by imprisonment pursuant to subdivision
7(h) of Section 1170 for two, three, or four years.

8(1) If the defendant has a prior conviction of violating the
9provisions, other than Section 27535, Section 27560 involving a
10firearm that is not a handgun, or Section 27565 involving a firearm
11that is not a handgun, of this article or former Section 12100 of
12this code, as Section 12100 read at any time from when it was
13enacted by Section 3 of Chapter 1386 of the Statutes of 1988 to
14when it was repealed by Section 18 of Chapter 23 of the Statutes
15of 1994, or Section 8101 of the Welfare and Institutions Code.

16(2) If the defendant has a prior conviction of violating any
17offense specified in Section 29905 or of a violation of Section
1832625 or 33410, or of former Section 12560, as that section read
19at any time from when it was enacted by Section 4 of Chapter 931
20of the Statutes of 1965 to when it was repealed by Section 14 of
21Chapter 9 of the Statutes of 1990, or of any provision listed in
22Section 16590.

23(3) If the defendant is in a prohibited class described in Chapter
242 (commencing with Section 29800) or Chapter 3 (commencing
25with Section 29900) of Division 9 of this title, or Section 8100 or
268103 of the Welfare and Institutions Code.

27(4) A violation of this article by a person who actively
28participates in a “criminal street gang” as defined in Section 186.22.

29(5) A violation of Section 27510 involving the delivery of any
30firearm to a person who the dealer knows, or should know, is a
31minor.

32(c) A violation of any of the following shall be punished by
33imprisonment in a county jail not exceeding one year or pursuant
34to subdivision (h) of Section 1170, or by a fine not to exceed one
35thousand dollars ($1,000), or by both that fine and imprisonment:

36(1) A violation of Section 27505 involving the sale, loan, or
37transfer of a handgun to a minor.

38(2) A violation of Section 27510 involving the delivery of a
39handgun.

P10   1(3) A violation of subdivision (a), (c), (d), (e), or (f) of Section
227540 involving a handgun.

3(4) A violation of Section 27545 involving a handgun.

4(5) A violation of Section 27550.

5(6) A violation of Section 27585 involving a handgun.

6(d) An additional term of imprisonment for one, two, or three
7years shall be imposed in addition and consecutive to the sentence
8prescribed for a violation of Section 27510 or subdivision (b) of
9Section 27500 if the firearm transferred in violation of Section
1027510 or subdivision (b) of Section 27500 is used in the subsequent
11commission of a felony for which a conviction is obtained and the
12prescribed sentence is imposed.

13(e) (1) A first violation of Section 27535 is an infraction
14punishable by a fine of fifty dollars ($50).

15(2) A second violation of Section 27535 is an infraction
16punishable by a fine of one hundred dollars ($100).

17(3) A third or subsequent violation of Section 27535 is a
18misdemeanor.

19(4) For purposes of this subdivision each application to purchase
20a handgun in violation of Section 27535 shall be deemed a separate
21offense.

22(f) A violation of the following shall be punished by
23imprisonment in the state prison for 16 months, or two or three
24years:

25(1) A violation of Section 27515.

26(2) A violation of Section 27520.

27(g) A violation of Section 27500 shall be punished by
28imprisonment in the state prison for two, three, or four years.

29begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 29805 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

30

29805.  

Except as provided in Section 29855 or subdivision (a)
31of Section 29800, any person who has been convicted of a
32misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140,
33subdivision (d) of Section 148, Section 171b, paragraph (1) of
34subdivision (a) of Section 171c, 171d, 186.28, 240, 241, 242, 243,
35243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6,
36422, 626.9, 646.9, or 830.95, subdivision (a) of former Section
3712100, as that section read at any time from when it was enacted
38by Section 3 of Chapter 1386 of the Statutes of 1988 to when it
39was repealed by Section 18 of Chapter 23 of the Statutes of 1994,
40Section 17500, 17510, 25300, 25800, 30315, or 32625, subdivision
P11   1(b) or (d) of Section 26100, or Section 27510, or Section 8100,
28101, or 8103 of the Welfare and Institutions Code, any
3firearm-related offense pursuant to Sections 871.5 and 1001.5 of
4the Welfare and Institutions Code, or of the conduct punished in
5subdivisionbegin delete (c)end deletebegin insert (c), (f), or (g)end insert of Section 27590, and who, within
610 years of the conviction, owns, purchases, receives, or has in
7possession or under custody or control, any firearm is guilty of a
8public offense, which shall be punishable by imprisonment in a
9county jail not exceeding one year or in the state prison, by a fine
10not exceeding one thousand dollars ($1,000), or by both that
11imprisonment and fine. The court, on forms prescribed by the
12Department of Justice, shall notify the department of persons
13subject to this section. However, the prohibition in this section
14may be reduced, eliminated, or conditioned as provided in Section
1529855 or 29860.

16

begin deleteSEC. 2.end delete
17
begin insertSEC. 4.end insert  

(a) The sum ofbegin delete ____end deletebegin insert two million two hundred thousand
18dollars ($2,200,000)end insert
is hereby appropriated from the General Fund
19to the Department of Justice for vertical prosecution of straw
20purchases of firearms and knowing transfers of firearms to
21prohibited persons, in violation of Section 27500, 27515, or 27520
22of the Penal Code, or any combination of those offenses.

23(b) As used in this section, “vertical prosecution” means a
24specially trained deputy attorney general assigned to the case from
25its filing to its completion.

26

begin deleteSEC. 3.end delete
27
begin insertSEC. 5.end insert  

(a) On or before January 1, 2020, the Department of
28Justice shall submit a report to the Legislature and the Governor
29which includes the number of prosecutions filed and convictions
30obtained by the department for violations of Sections 27500, 27515,
31and 27520, pursuant to this act. The report shall be submitted in
32compliance with Section 9795 of the Government Code.

33(b) Pursuant to Section 10231.5 of the Government Code, this
34section is repealed on January 1, 2024.

35

begin deleteSEC. 4.end delete
36
begin insertSEC. 6.end insert  

No reimbursement is required by this act pursuant to
37Section 6 of Article XIII B of the California Constitution because
38the only costs that may be incurred by a local agency or school
39district will be incurred because this act creates a new crime or
40infraction, eliminates a crime or infraction, or changes the penalty
P12   1for a crime or infraction, within the meaning of Section 17556 of
2the Government Code, or changes the definition of a crime within
3the meaning of Section 6 of Article XIII B of the California
4Constitution.



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