Amended in Senate April 21, 2015

Senate BillNo. 752


Introduced by Senator Nielsen

February 27, 2015


An act to amendbegin delete Section 11366.5 of the Health and Safety Code, and to amendend delete Sectionsbegin delete 69, 76,end delete 146e, 148,begin delete 148.10, 243, 243.1, 244.5, 621, 836.6, and 22810end deletebegin insert 243, and 243.1end insert of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 752, as amended, Nielsen. Crimes.

Existing law makes it a crime to violate various provisions prohibiting certain actions against a peace officer or his or her family, other first responders, or public officials, including, but not limited to, removing an officer’s firearm while resistingbegin delete arrest, using a stun gun against a peace officer or firefighter,end deletebegin insert arrestend insert and committing a battery against a peace officer or other medical personnel engaged in the performance of his or her duties. Existing law generally makes the violation of these provisions misdemeanors or felonies punishable in a county jail, as specified, or both a misdemeanor or a felony, commonly referred to as a wobbler.

This bill would revise these provisions to make all of the misdemeanors or wobblers instead punishable as felonies in county jail and make all of the felonies punishable in county jail instead punishable in state prison, as specified.

By increasing the punishment for a crime, this bill would impose a state-mandated local program.

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:

begin delete
P2    1

SECTION 1.  

Section 11366.5 of the Health and Safety Code
2 is amended to read:

3

11366.5.  

(a) Any person who has under his or her management
4or control any building, room, space, or enclosure, either as an
5owner, lessee, agent, employee, or mortgagee, who knowingly
6rents, leases, or makes available for use, with or without
7compensation, the building, room, space, or enclosure for the
8purpose of unlawfully manufacturing, storing, or distributing any
9controlled substance for sale or distribution shall be punished by
10imprisonment in the county jail for not more than one year, or
11pursuant to subdivision (h) of Section 1170 of the Penal Code.

12(b) Any person who has under his or her management or control
13any building, room, space, or enclosure, either as an owner, lessee,
14agent, employee, or mortgagee, who knowingly allows the building,
15room, space, or enclosure to be fortified to suppress law
16enforcement entry in order to further the sale of any amount of
17cocaine base as specified in paragraph (1) of subdivision (f) of
18Section 11054, cocaine as specified in paragraph (6) of subdivision
19(b) of Section 11055, heroin, phencyclidine, amphetamine,
20methamphetamine, or lysergic acid diethylamide and who obtains
21excessive profits from the use of the building, room, space, or
22enclosure shall be punished by imprisonment in the state prison
23for two, three, or four years.

24(c) Any person who violates subdivision (a) after previously
25being convicted of a violation of subdivision (a) shall be punished
26by imprisonment pursuant to subdivision (h) of Section 1170 of
27the Penal Code for two, three, or four years.

28(d) For the purposes of this section, “excessive profits” means
29the receipt of consideration of a value substantially higher than
30fair market value.

31

SEC. 2.  

Section 69 of the Penal Code is amended to read:

32

69.  

Every person who attempts, by means of any threat or
33violence, to deter or prevent an executive officer from performing
P3    1any duty imposed upon the officer by law, or who knowingly
2resists, by the use of force or violence, the officer, in the
3performance of his or her duty, is punishable by a fine not
4exceeding ten thousand dollars ($10,000), or by imprisonment
5 pursuant to subdivision (h) of Section 1170, or by both that fine
6and imprisonment.

7

SEC. 3.  

Section 76 of the Penal Code is amended to read:

8

76.  

(a) Every person who knowingly and willingly threatens
9the life of, or threatens serious bodily harm to, any elected public
10official, county public defender, county clerk, exempt appointee
11of the Governor, judge, or Deputy Commissioner of the Board of
12Parole Hearings, or the staff, immediate family, or immediate
13family of the staff of any elected public official, county public
14defender, county clerk, exempt appointee of the Governor, judge,
15or Deputy Commissioner of the Board of Parole Hearings, with
16the specific intent that the statement is to be taken as a threat, and
17the apparent ability to carry out that threat by any means, is guilty
18of a public offense, punishable as follows:

19(1) Upon a first conviction, the offense is punishable by a fine
20not exceeding ten thousand dollars ($10,000), or by imprisonment
21pursuant to subdivision (h) of Section 1170, or by both that fine
22and imprisonment.

23(2) If the person has been convicted previously of violating this
24section, the previous conviction shall be charged in the accusatory
25pleading, and if the previous conviction is found to be true by the
26jury upon a jury trial, or by the court upon a court trial, or is
27admitted by the defendant, the offense is punishable by
28imprisonment in state prison.

29(b) Any law enforcement agency that has knowledge of a
30violation of this section involving a constitutional officer of the
31state, a Member of the Legislature, or a member of the judiciary
32shall immediately report that information to the Department of the
33California Highway Patrol.

34(c) For purposes of this section, the following definitions shall
35apply:

36(1) “Apparent ability to carry out that threat” includes the ability
37to fulfill the threat at some future date when the person making
38the threat is an incarcerated prisoner with a stated release date.

39(2) “Serious bodily harm” includes serious physical injury or
40serious traumatic condition.

P4    1(3) “Immediate family” means a spouse, parent, or child, or
2anyone who has regularly resided in the household for the past six
3months.

4(4) “Staff of a judge” means court officers and employees,
5including commissioners, referees, and retired judges sitting on
6assignment.

7(5) “Threat” means a verbal or written threat or a threat implied
8by a pattern of conduct or a combination of verbal or written
9statements and conduct made with the intent and the apparent
10ability to carry out the threat so as to cause the person who is the
11target of the threat to reasonably fear for his or her safety or the
12safety of his or her immediate family.

13(d) As for threats against staff or immediate family of staff, the
14threat must relate directly to the official duties of the staff of the
15elected public official, county public defender, county clerk,
16exempt appointee of the Governor, judge, or Deputy Commissioner
17of the Board of Parole Hearings in order to constitute a public
18offense under this section.

19(e) A threat must relate directly to the official duties of a Deputy
20Commissioner of the Board of Parole Hearings in order to
21constitute a public offense under this section.

end delete
22

begin deleteSEC. 4.end delete
23begin insertSECTION 1.end insert  

Section 146e of the Penal Code is amended to
24read:

25

146e.  

(a) Every person who maliciously, and with the intent
26to obstruct justice or the due administration of the laws, or with
27the intent or threat to inflict imminent physical harm in retaliation
28for the due administration of the laws, publishes, disseminates, or
29otherwise discloses the residence address or telephone number of
30any peace officer, nonsworn police dispatcher, employee of a city
31police department or county sheriff’s office, or public safety
32official, or that of the spouse or children of these persons who
33reside with them, while designating the peace officer, nonsworn
34police dispatcher, employee of a city police department or county
35sheriff’s office, or public safety official, or relative of these persons
36as such, without the authorization of the employing agency, shall
37be punished by imprisonment pursuant to subdivision (h) of Section
381170.

39(b) A violation of subdivision (a) with regard to any peace
40officer, employee of a city police department or county sheriff’s
P5    1office, or public safety official, or the spouse or children of these
2persons, that results in bodily injury to the peace officer, employee
3of the city police department or county sheriff’s office, or public
4safety official, or the spouse or children of these persons, is a felony
5punishable by imprisonment pursuant to subdivision (h) of Section
61170.

7(c) For purposes of this section, “public safety official” is
8defined in Section 6254.24 of the Government Code.

9

begin deleteSEC. 5.end delete
10begin insertSEC. 2.end insert  

Section 148 of the Penal Code is amended to read:

11

148.  

(a) (1) Every person who willfully resists, delays, or
12obstructs any public officer, peace officer, or an emergency medical
13technician, as defined in Division 2.5 (commencing with Section
141797) of the Health and Safety Code, in the discharge or attempt
15to discharge any duty of his or her office or employment, when
16no other punishment is prescribed, shall be punished by a fine not
17exceeding one thousand dollars ($1,000), or by imprisonment in
18a county jail not to exceed one year, or by both that fine and
19imprisonment.

20(2) Except as provided by subdivision (d) of Section 653t, every
21person who knowingly and maliciously interrupts, disrupts,
22impedes, or otherwise interferes with the transmission of a
23communication over a public safety radio frequency shall be
24punished by a fine not exceeding one thousand dollars ($1,000),
25imprisonment in a county jail not exceeding one year, or by both
26that fine and imprisonment.

27(b) Every person who, during the commission of any offense
28described in subdivision (a), removes or takes any weapon, other
29than a firearm, from the person of, or immediate presence of, a
30public officer or peace officer shall be punished by imprisonment
31pursuant to subdivision (h) of Section 1170.

32(c) Every person who, during the commission of any offense
33described in subdivision (a), removes or takes a firearm from the
34person of, or immediate presence of, a public officer or peace
35officer shall be punished by imprisonment in state prison.

36(d) Except as provided in subdivision (c) and notwithstanding
37subdivision (a) of Section 489, every person who removes or takes
38without intent to permanently deprive, or who attempts to remove
39or take a firearm from the person of, or immediate presence of, a
40public officer or peace officer, while the officer is engaged in the
P6    1performance of his or her lawful duties, shall be punished by
2imprisonment pursuant to subdivision (h) of Section 1170.

3In order to prove a violation of this subdivision, the prosecution
4shall establish that the defendant had the specific intent to remove
5or take the firearm by demonstrating that any of the following
6direct, but ineffectual, acts occurred:

7(1) The officer’s holster strap was unfastened by the defendant.

8(2) The firearm was partially removed from the officer’s holster
9by the defendant.

10(3) The firearm safety was released by the defendant.

11(4) An independent witness corroborates that the defendant
12stated that he or she intended to remove the firearm and the
13defendant actually touched the firearm.

14(5) An independent witness corroborates that the defendant
15actually had his or her hand on the firearm and tried to take the
16firearm away from the officer who was holding it.

17(6) The defendant’s fingerprint was found on the firearm or
18holster.

19(7) Physical evidence authenticated by a scientifically verifiable
20procedure established that the defendant touched the firearm.

21(8) In the course of any struggle, the officer’s firearm fell and
22the defendant attempted to pick it up.

23(e) A person shall not be convicted of a violation of subdivision
24(a) in addition to a conviction of a violation of subdivision (b), (c),
25or (d) when the resistance, delay, or obstruction, and the removal
26or taking of the weapon or firearm or attempt thereof, was
27committed against the same public officer, peace officer, or
28emergency medical technician. A person may be convicted of
29multiple violations of this section if more than one public officer,
30peace officer, or emergency medical technician are victims.

31(f) This section shall not apply if the public officer, peace
32officer, or emergency medical technician is disarmed while engaged
33in a criminal act.

begin delete
34

SEC. 6.  

Section 148.10 of the Penal Code is amended to read:

35

148.10.  

(a) Every person who willfully resists a peace officer
36in the discharge or attempt to discharge any duty of his or her
37office or employment and whose willful resistance proximately
38causes death or serious bodily injury to a peace officer shall be
39punished by imprisonment pursuant to subdivision (h) of Section
401170 for two, three, or four years, or by a fine of not less than one
P7    1thousand dollars ($1,000) or more than ten thousand dollars
2($10,000), or by both that fine and imprisonment.

3(b) For purposes of subdivision (a), the following facts shall be
4found by the trier of fact:

5(1) That the peace officer’s action was reasonable based on the
6facts or circumstances confronting the officer at the time.

7(2) That the detention and arrest was lawful and there existed
8probable cause or reasonable cause to detain.

9(3) That the person who willfully resisted any peace officer
10knew or reasonably should have known that the other person was
11a peace officer engaged in the performance of his or her duties.

12(c) This section does not apply to conduct that occurs during
13labor picketing, demonstrations, or disturbing the peace.

14(d) For purposes of this section, “serious bodily injury” is
15defined in paragraph (4) of subdivision (f) of Section 243.

end delete
16

begin deleteSEC. 7.end delete
17begin insertSEC. 3.end insert  

Section 243 of the Penal Code is amended to read:

18

243.  

(a) A battery is punishable by a fine not exceeding two
19thousand dollars ($2,000), or by imprisonment in a county jail not
20exceeding six months, or by both that fine and imprisonment.

21(b) When a battery is committed against the person of a peace
22officer, custodial officer, firefighter, emergency medical technician,
23lifeguard, security officer, custody assistant, process server, traffic
24officer, code enforcement officer, animal control officer, or search
25and rescue member engaged in the performance of his or her duties,
26whether on or off duty, including when the peace officer is in a
27police uniform and is concurrently performing the duties required
28of him or her as a peace officer while also employed in a private
29capacity as a part-time or casual private security guard or
30patrolman, or a nonsworn employee of a probation department
31engaged in the performance of his or her duties, whether on or off
32duty, or a physician or nurse engaged in rendering emergency
33medical care outside a hospital, clinic, or other health care facility,
34and the person committing the offense knows or reasonably should
35know that the victim is a peace officer, custodial officer, firefighter,
36emergency medical technician, lifeguard, security officer, custody
37assistant, process server, traffic officer, code enforcement officer,
38animal control officer, or search and rescue member engaged in
39the performance of his or her duties, nonsworn employee of a
40probation department, or a physician or nurse engaged in rendering
P8    1emergency medical care, the battery is punishable by a fine not
2exceeding two thousand dollars ($2,000), or by imprisonment in
3a county jail not exceeding one year, or by both that fine and
4imprisonment.

5(c) (1) When a battery is committed against a custodial officer,
6firefighter, emergency medical technician, lifeguard, process server,
7traffic officer, or animal control officer engaged in the performance
8of his or her duties, whether on or off duty, or a nonsworn
9employee of a probation department engaged in the performance
10of his or her duties, whether on or off duty, or a physician or nurse
11engaged in rendering emergency medical care outside a hospital,
12clinic, or other health care facility, and the person committing the
13offense knows or reasonably should know that the victim is a
14nonsworn employee of a probation department, custodial officer,
15firefighter, emergency medical technician, lifeguard, process server,
16traffic officer, or animal control officer engaged in the performance
17of his or her duties, or a physician or nurse engaged in rendering
18emergency medical care, and an injury is inflicted on that victim,
19the battery is punishable by imprisonment pursuant to subdivision
20(h) of Section 1170 for 16 months, or two or three years.

21(2) When the battery specified in paragraph (1) is committed
22against a peace officer engaged in the performance of his or her
23duties, whether on or off duty, including when the peace officer
24is in a police uniform and is concurrently performing the duties
25required of him or her as a peace officer while also employed in
26a private capacity as a part-time or casual private security guard
27or patrolman and the person committing the offense knows or
28reasonably should know that the victim is a peace officer engaged
29in the performance of his or her duties, the battery is punishable
30by a fine of not more than ten thousand dollars ($10,000), or by
31imprisonment pursuant to subdivision (h) of Section 1170 for 16
32months, or two or three years, or by both that fine and
33imprisonment.

34(d) When a battery is committed against any person and serious
35bodily injury is inflicted on the person, the battery is punishable
36by imprisonment in a county jail not exceeding one year or
37imprisonment pursuant to subdivision (h) of Section 1170 for two,
38three, or four years.

39(e) (1) When a battery is committed against a spouse, a person
40with whom the defendant is cohabiting, a person who is the parent
P9    1of the defendant’s child, former spouse, fiancé, or fiancée, or a
2person with whom the defendant currently has, or has previously
3had, a dating or engagement relationship, the battery is punishable
4by a fine not exceeding two thousand dollars ($2,000), or by
5imprisonment in a county jail for a period of not more than one
6year, or by both that fine and imprisonment. If probation is granted,
7or the execution or imposition of the sentence is suspended, it shall
8be a condition thereof that the defendant participate in, for no less
9than one year, and successfully complete, a batterer’s treatment
10program, as described in Section 1203.097, or if none is available,
11another appropriate counseling program designated by the court.
12However, this provision shall not be construed as requiring a city,
13a county, or a city and county to provide a new program or higher
14level of service as contemplated by Section 6 of Article XIII B of
15the California Constitution.

16(2) Upon conviction of a violation of this subdivision, if
17probation is granted, the conditions of probation may include, in
18lieu of a fine, one or both of the following requirements:

19(A) That the defendant make payments to a battered women’s
20shelter, up to a maximum of five thousand dollars ($5,000).

21(B) That the defendant reimburse the victim for reasonable costs
22of counseling and other reasonable expenses that the court finds
23are the direct result of the defendant’s offense.

24For any order to pay a fine, make payments to a battered
25women’s shelter, or pay restitution as a condition of probation
26under this subdivision, the court shall make a determination of the
27defendant’s ability to pay. In no event shall any order to make
28payments to a battered women’s shelter be made if it would impair
29the ability of the defendant to pay direct restitution to the victim
30or court-ordered child support. If the injury to a married person is
31caused in whole or in part by the criminal acts of his or her spouse
32in violation of this section, the community property shall not be
33used to discharge the liability of the offending spouse for restitution
34to the injured spouse, required by Section 1203.04, as operative
35on or before August 2, 1995, or Section 1202.4, or to a shelter for
36costs with regard to the injured spouse and dependents, required
37by this section, until all separate property of the offending spouse
38is exhausted.

39(3) Upon conviction of a violation of this subdivision, if
40probation is granted or the execution or imposition of the sentence
P10   1is suspended and the person has been previously convicted of a
2violation of this subdivision and sentenced under paragraph (1),
3the person shall be imprisoned for not less than 48 hours in addition
4to the conditions in paragraph (1). However, the court, upon a
5showing of good cause, may elect not to impose the mandatory
6minimum imprisonment as required by this subdivision and may,
7under these circumstances, grant probation or order the suspension
8of the execution or imposition of the sentence.

9(4) The Legislature finds and declares that these specified crimes
10merit special consideration when imposing a sentence so as to
11display society’s condemnation for these crimes of violence upon
12victims with whom a close relationship has been formed.

13(5) If a peace officer makes an arrest for a violation of paragraph
14(1) of subdivision (e) of this section, the peace officer is not
15required to inform the victim of his or her right to make a citizen’s
16arrest pursuant to subdivision (b) of Section 836.

17(f) As used in this section:

18(1) “Peace officer” means any person defined in Chapter 4.5
19(commencing with Section 830) of Title 3 of Part 2.

20(2) “Emergency medical technician” means a person who is
21either an EMT-I, EMT-II, or EMT-P (paramedic), and possesses
22a valid certificate or license in accordance with the standards of
23Division 2.5 (commencing with Section 1797) of the Health and
24Safety Code.

25(3) “Nurse” means a person who meets the standards of Division
262.5 (commencing with Section 1797) of the Health and Safety
27Code.

28(4) “Serious bodily injury” means a serious impairment of
29physical condition, including, but not limited to, the following:
30loss of consciousness; concussion; bone fracture; protracted loss
31or impairment of function of any bodily member or organ; a wound
32requiring extensive suturing; and serious disfigurement.

33(5) “Injury” means any physical injury which requires
34professional medical treatment.

35(6) “Custodial officer” means any person who has the
36responsibilities and duties described in Section 831 and who is
37employed by a law enforcement agency of any city or county or
38who performs those duties as a volunteer.

39(7) “Lifeguard” means a person defined in paragraph (5) of
40subdivision (d) of Section 241.

P11   1(8) “Traffic officer” means any person employed by a city,
2county, or city and county to monitor and enforce state laws and
3local ordinances relating to parking and the operation of vehicles.

4(9) “Animal control officer” means any person employed by a
5city, county, or city and county for purposes of enforcing animal
6control laws or regulations.

7(10) “Dating relationship” means frequent, intimate associations
8primarily characterized by the expectation of affectional or sexual
9involvement independent of financial considerations.

10(11) (A) “Code enforcement officer” means any person who
11is not described in Chapter 4.5 (commencing with Section 830) of
12Title 3 of Part 2 and who is employed by any governmental
13subdivision, public or quasi-public corporation, public agency,
14public service corporation, any town, city, county, or municipal
15corporation, whether incorporated or chartered, who has
16enforcement authority for health, safety, and welfare requirements,
17and whose duties include enforcement of any statute, rules,
18regulations, or standards, and who is authorized to issue citations,
19or file formal complaints.

20(B) “Code enforcement officer” also includes any person who
21is employed by the Department of Housing and Community
22Development who has enforcement authority for health, safety,
23and welfare requirements pursuant to the Employee Housing Act
24(Part 1 (commencing with Section 17000) of Division 13 of the
25Health and Safety Code); the State Housing Law (Part 1.5
26(commencing with Section 17910) of Division 13 of the Health
27and Safety Code); the Manufactured Housing Act of 1980 (Part 2
28(commencing with Section 18000) of Division 13 of the Health
29and Safety Code); the Mobilehome Parks Act (Part 2.1
30(commencing with Section 18200) of Division 13 of the Health
31and Safety Code); and the Special Occupancy Parks Act (Part 2.3
32(commencing with Section 18860) of Division 13 of the Health
33and Safety Code).

34(12) “Custody assistant” means any person who has the
35responsibilities and duties described in Section 831.7 and who is
36employed by a law enforcement agency of any city, county, or city
37and county.

38(13) “Search and rescue member” means any person who is part
39of an organized search and rescue team managed by a government
40agency.

P12   1(14) “Security officer” means any person who has the
2responsibilities and duties described in Section 831.4 and who is
3employed by a law enforcement agency of any city, county, or city
4and county.

5(g) It is the intent of the Legislature by amendments to this
6section at the 1981-82 and 1983-84 Regular Sessions to abrogate
7the holdings in cases such as People v. Corey, 21 Cal. 3d 738, and
8Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, and to reinstate prior
9judicial interpretations of this section as they relate to criminal
10sanctions for battery on peace officers who are employed, on a
11part-time or casual basis, while wearing a police uniform as private
12security guards or patrolmen and to allow the exercise of peace
13officer powers concurrently with that employment.

14

begin deleteSEC. 8.end delete
15begin insertSEC. 4.end insert  

Section 243.1 of the Penal Code is amended to read:

16

243.1.  

When a battery is committed against the person of a
17custodial officer as defined in Section 831 of the Penal Code, and
18the person committing the offense knows or reasonably should
19know that the victim is a custodial officer engaged in the
20performance of his or her duties, and the custodial officer is
21engaged in the performance of his or her duties, the offense shall
22be punished by imprisonment in state prison.

begin delete
23

SEC. 9.  

Section 244.5 of the Penal Code is amended to read:

24

244.5.  

(a) As used in this section, “stun gun” means any item,
25except a less lethal weapon, as defined in Section 16780, used or
26intended to be used as either an offensive or defensive weapon
27that is capable of temporarily immobilizing a person by the
28infliction of an electrical charge.

29(b) Every person who commits an assault upon the person of
30another with a stun gun or less lethal weapon, as defined in Section
3116780, shall be punished by imprisonment in a county jail for a
32term not exceeding one year, or by imprisonment pursuant to
33subdivision (h) of Section 1170 for 16 months, two, or three years.

34(c) Every person who commits an assault upon the person of a
35peace officer or firefighter with a stun gun or less lethal weapon,
36as defined in Section 16780, who knows or reasonably should
37know that the person is a peace officer or firefighter engaged in
38the performance of his or her duties, when the peace officer or
39firefighter is engaged in the performance of his or her duties, shall
P13   1be punished by imprisonment pursuant to subdivision (h) of Section
21170 for two, three, or four years.

3(d) This section shall not be construed to preclude or in any way
4limit the applicability of Section 245 in any criminal prosecution.

5

SEC. 10.  

Section 621 of the Penal Code is amended to read:

6

621.  

Every person who maliciously destroys, cuts, breaks,
7mutilates, effaces, or otherwise injures, tears down, or removes
8any law enforcement memorial or firefighter’s memorial is guilty
9of a crime punishable by imprisonment pursuant to subdivision
10(h) of Section 1170.

11

SEC. 11.  

Section 836.6 of the Penal Code is amended to read:

12

836.6.  

(a) It is unlawful for any person who is remanded by a
13magistrate or judge of any court in this state to the custody of a
14sheriff, marshal, or other police agency, to thereafter escape or
15attempt to escape from that custody.

16(b) It is unlawful for any person who has been lawfully arrested
17by any peace officer and who knows, or by the exercise of
18reasonable care should have known, that he or she has been so
19arrested, to thereafter escape or attempt to escape from that peace
20officer.

21(c) Any person who violates subdivision (a) or (b) is guilty of
22a misdemeanor, punishable by imprisonment in a county jail not
23to exceed one year. However, if the escape or attempted escape is
24by force or violence, and the person proximately causes a peace
25officer serious bodily injury, the person shall be punished by
26imprisonment in the state prison for two, three, or four years.

27

SEC. 12.  

Section 22810 of the Penal Code is amended to read:

28

22810.  

Notwithstanding any other provision of law, any person
29may purchase, possess, or use tear gas or any tear gas weapon for
30the projection or release of tear gas if the tear gas or tear gas
31weapon is used solely for self-defense purposes, subject to the
32following requirements:

33(a) No person convicted of a felony or any crime involving an
34assault under the laws of the United States, the State of California,
35or any other state, government, or country, or convicted of misuse
36of tear gas under subdivision (g), shall purchase, possess, or use
37tear gas or any tear gas weapon.

38(b) No person addicted to any narcotic drug shall purchase,
39possess, or use tear gas or any tear gas weapon.

P14   1(c) No person shall sell or furnish any tear gas or tear gas
2weapon to a minor.

3(d) No minor shall purchase, possess, or use tear gas or any tear
4gas weapon.

5(e) (1) No person shall purchase, possess, or use any tear gas
6weapon that expels a projectile, or that expels the tear gas by any
7method other than an aerosol spray, or that contains more than 2.5
8ounces net weight of aerosol spray.

9(2) Every tear gas container and tear gas weapon that may be
10lawfully purchased, possessed, and used pursuant to this section
11shall have a label that states: “WARNING: The use of this
12substance or device for any purpose other than self-defense is a
13crime under the law. The contents are dangerous -- use with care.”

14(3) After January 1, 1984, every tear gas container and tear gas
15weapon that may be lawfully purchased, possessed, and used
16pursuant to this section shall have a label that discloses the date
17on which the useful life of the tear gas weapon expires.

18(4) Every tear gas container and tear gas weapon that may be
19lawfully purchased pursuant to this section shall be accompanied
20at the time of purchase by printed instructions for use.

21(f) Effective March 1, 1994, every tear gas container and tear
22gas weapon that may be lawfully purchased, possessed, and used
23pursuant to this section shall be accompanied by an insert including
24directions for use, first aid information, safety and storage
25information, and explanation of the legal ramifications of improper
26use of the tear gas container or tear gas product.

27(g) (1) Except as provided in paragraph (2), any person who
28uses tear gas or any tear gas weapon except in self-defense is guilty
29of a public offense and is punishable by imprisonment pursuant
30to subdivision (h) of Section 1170 for 16 months, or two or three
31years or in a county jail not to exceed one year or by a fine not to
32exceed one thousand dollars ($1,000), or by both the fine and
33imprisonment.

34(2) If the use is against a peace officer, as defined in Chapter
354.5 (commencing with Section 830) of Title 3 of Part 2, engaged
36in the performance of official duties and the person committing
37the offense knows or reasonably should know that the victim is a
38peace officer, the offense is punishable by imprisonment in state
39prison for 16 months or two or three years or by a fine not to
P15   1exceed ten thousand dollars ($10,000), or by both the fine and
2imprisonment.

end delete
3

begin deleteSEC. 13.end delete
4begin insertSEC. 5.end insert  

No reimbursement is required by this act pursuant to
5Section 6 of Article XIII B of the California Constitution because
6the only costs that may be incurred by a local agency or school
7district will be incurred because this act creates a new crime or
8infraction, eliminates a crime or infraction, or changes the penalty
9for a crime or infraction, within the meaning of Section 17556 of
10the Government Code, or changes the definition of a crime within
11the meaning of Section 6 of Article XIII B of the California
12Constitution.



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