BILL NUMBER: AB 78 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 17, 1997
AMENDED IN SENATE MAY 29, 1997
AMENDED IN ASSEMBLY MARCH 20, 1997
AMENDED IN ASSEMBLY MARCH 17, 1997
INTRODUCED BY Assembly Member Granlund
DECEMBER 18, 1996
An act to amend Sections 626.10, 12020, 12021, 12026.2,
12076, 12092, 12094, 12201, 12316, and 12322 of the Penal Code, and
to amend Section 8103 of the Welfare and Institutions Code, relating
to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 78, as amended, Granlund. Firearms: transporting exemption.
(1) Existing law provides exemptions from the prohibition against
the manufacture, import, sale, giving, lending, or possession of
specified weapons and firearms. Existing law also provides
exemptions for the possession of handgun ammunition.
This bill would add to these exemptions all
both of the following:
(a) The circumstance where any of these weapons, firearms other
than a short-barreled rifle or short-barreled shotgun, or ammunition
is found and possessed by a person who is not in a specified
prohibited class and is transporting the weapon, firearm, or device
to a law enforcement agency for disposition according to law.
(b) The possession of any weapon, device, or ammunition by a
forensic laboratory or any authorized agent or employee thereof in
the course and scope of his or her authorized activities.
(c) A dirk or dagger that is carried in a backpack, tool belt,
tackle box, briefcase, purse, or similar container that is used to
carry or transport possessions.
(2) Under existing law, one of the weapons subject to the
prohibition described in (1) above is a dirk or dagger that is
carried concealed upon the person. For purposes of this prohibition,
a dirk or dagger is defined as a knife or other instrument with or
without a handguard that is capable of ready use as a stabbing weapon
that may inflict great bodily injury or death.
This bill would specify that a nonlocking folding knife, a folding
knife that is not a switchblade knife having a blade 2 or more
inches in length, or a pocketknife is capable of ready use as a
stabbing weapon that may inflict great bodily injury or death only if
the blade of the knife is exposed and locked into position.
(3) Under existing law, any person who is subject to
the prohibition on owning, possessing, or having a firearm under his
or her custody or control because of specified misdemeanor
convictions prior to January 1, 1991, may petition the court only
once for relief from the prohibition.
This bill would instead permit any person who is subject to the
prohibition because of a conviction of an offense prior to the
offense being added to the specified offenses that are subject to the
prohibition, to petition the court only once for relief from the
prohibition.
(4) The prohibition described in (3) above additionally
includes persons who have specified felony convictions or are found
to be mentally incompetent. Every person subject to this prohibition
is likewise prohibited from owning, possessing, or having
Existing law provides that no person prohibited by state law
from owning or processing a firearm shall own, possess, or have
under his or her custody or control, any ammunition or reloaded
ammunition.
This bill would specify conditions that justify a violation of
this prohibition against owning or possessing, or having
custody or control of, ammunition or reloaded ammunition .
(5) Existing law makes it a misdemeanor for any person with
knowledge of any change, alteration, or obliteration to buy, receive,
dispose of, sell, or possess any pistol, revolver, or other firearm
with changed, altered, or obliterated identification marks.
This bill would exempt from this provision persons in specified
classes, including certain on-duty peace officers and persons
transporting a firearm to a law enforcement agency for disposition,
as specified.
(6) Under existing law, any person who, as a result of mental
disorder, is a danger to others, or to himself or herself, or gravely
disabled, and is taken into custody in an evaluation facility
designated by the county and approved by the State Department of
Mental Health as a facility for 72-hour treatment and evaluation, is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of 5 years after release from the
facility. Existing law also applies this prohibition if the person
detained pursuant to this provision is certified for not more than 14
days of intensive treatment related to the mental disorder or
impairment by chronic alcoholism.
This bill would repeal this prohibition as it applies to a person
who is detained for treatment and evaluation for a period not to
exceed 72 hours. The bill also would make conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 626.10 of the Penal Code is amended to
read:
626.10. (a) Any person, except a duly appointed peace officer as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in this
state, a person summoned by any officer to assist in making arrests
or preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick,
knife having a blade longer than 21/2 inches, folding knife with a
blade that locks into place, a razor with an unguarded blade, a
taser, or a stun gun, as defined in subdivision (a) of Section 244.5,
any instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun, upon the grounds of, or within, any
public or private school providing instruction in kindergarten or any
of grades 1 to 12, inclusive, is guilty of a public offense,
punishable by imprisonment in a county jail not exceeding one year,
or by imprisonment in the state prison.
(b) Any person, except a duly appointed peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a
full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick, or
knife having a fixed blade longer than 21/2 inches upon the grounds
of, or within, any private university, the University of California,
the California State University, or the California Community Colleges
is guilty of a public offense, punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison.
(c) Subdivisions (a) and (b) do not apply to any person who brings
or possesses a knife having a blade longer than 21/2 inches or a
razor with an unguarded blade upon the grounds of, or within, a
public or private school providing instruction in kindergarten or any
of grades 1 to 12, inclusive, or any private university, state
university, or community college at the direction of a faculty member
of the private university, state university, or community college,
or a certificated or classified employee of the school for use in a
private university, state university, community college, or
school-sponsored activity or class.
(d) Subdivisions (a) and (b) do not apply to any person who brings
or possesses an ice pick, a knife having a blade longer than 21/2
inches, or a razor with an unguarded blade upon the grounds of, or
within, a public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, or any private
university, state university, or community college for a lawful
purpose within the scope of the person's employment.
(e) Subdivision (b) does not apply to any person who brings or
possesses an ice pick or a knife having a fixed blade longer than
21/2 inches upon the grounds of, or within, any private university,
state university, or community college for lawful use in or around a
residence or residential facility located upon those grounds or for
lawful use in food preparation or consumption.
(f) Subdivision (a) does not apply to any person who brings an
instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun upon the grounds of, or within, a
public or private school providing instruction in kindergarten or any
of grades 1 to 12, inclusive, if the person has the written
permission of the school principal or his or her designee.
(g) Any certificated or classified employee or school peace
officer of a public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, may seize any of
the weapons described in subdivision (a), and any certificated or
classified employee or school peace officer of any private
university, state university, or community college may seize any of
the weapons described in subdivision (b), from the possession of any
person upon the grounds of, or within, the school if he or she knows,
or has reasonable cause to know, the person is prohibited from
bringing or possessing the weapon upon the grounds of, or within, the
school.
(h) As used in this section, "dirk" or "dagger" means a knife or
other instrument with or without a handguard that is capable of ready
use as a stabbing weapon that may inflict great bodily injury or
death. A nonlocking folding knife, a folding knife that is not
prohibited by Section 653k, or a pocketknife is capable of ready use
as a stabbing weapon that may inflict great bodily injury or death
only if the blade of the knife is exposed and locked into position.
SEC. 1.5. Section 12020 of the Penal Code is amended to
read:
12020. (a) Any person in this state who manufactures or causes to
be manufactured, imports into the state, keeps for sale, or offers
or exposes for sale, or who gives, lends, or possesses any cane gun
or wallet gun, any undetectable firearm, any firearm which is not
immediately recognizable as a firearm, any camouflaging firearm
container, any ammunition which contains or consists of any flechette
dart, any bullet containing or carrying an explosive agent, any
ballistic knife, any multiburst trigger activator, any nunchaku, any
short-barreled shotgun, any short-barreled rifle, any metal knuckles,
any belt buckle knife, any leaded cane, any zip gun, any shuriken,
any unconventional pistol, any lipstick case knife, any cane sword,
any shobi-zue, any air gauge knife, any writing pen knife, or any
instrument or weapon of the kind commonly known as a blackjack,
slungshot, billy, sandclub, sap, or sandbag, or who carries concealed
upon his or her person any explosive substance, other than fixed
ammunition, or who carries concealed upon his or her person any dirk
or dagger is punishable by imprisonment in a county jail not
exceeding one year or in the state prison. A bullet containing or
carrying an explosive agent is not a destructive device as that term
is used in Section 12301.
(b) Subdivision (a) does not apply to any of the following:
(1) The sale to, purchase by, or possession of short-barreled
shotguns or short-barreled rifles by police departments, sheriffs'
offices, marshals' offices, the California Highway Patrol, the
Department of Justice, or the military or naval forces of this state
or of the United States for use in the discharge of their official
duties or the possession of short-barreled shotguns and
short-barreled rifles by regular, salaried, full-time members of a
police department, sheriff's office, marshal's office, the California
Highway Patrol, or the Department of Justice when on duty and the
use is authorized by the agency and is within the course and scope of
their duties.
(2) The manufacture, possession, transportation or sale of
short-barreled shotguns or short-barreled rifles when authorized by
the Department of Justice pursuant to Article 6 (commencing with
Section 12095) of this chapter and not in violation of federal law.
(3) The possession of a nunchaku on the premises of a school which
holds a regulatory or business license and teaches the arts of
self-defense.
(4) The manufacture of a nunchaku for sale to, or the sale of a
nunchaku to, a school which holds a regulatory or business license
and teaches the arts of self-defense.
(5) Any antique firearm. For purposes of this section, "antique
firearm" means any firearm not designed or redesigned for using
rimfire or conventional center fire ignition with fixed ammunition
and manufactured in or before 1898 (including any matchlock,
flintlock, percussion cap, or similar type of ignition system or
replica thereof, whether actually manufactured before or after the
year 1898) and also any firearm using fixed ammunition manufactured
in or before 1898, for which ammunition is no longer manufactured in
the United States and is not readily available in the ordinary
channels of commercial trade.
(6) Tracer ammunition manufactured for use in shotguns.
(7) Any firearm or ammunition which is a curio or relic as defined
in Section 178.11 of Title 27 of the Code of Federal Regulations and
which is in the possession of a person permitted to possess the
items pursuant to Chapter 44 (commencing with Section 921) of Title
18 of the United States Code and the regulations issued pursuant
thereto. Any person prohibited by Section 12021, 12021.1, or 12101
of this code or Section 8100 or 8103 of the Welfare and Institutions
Code from possessing firearms or ammunition who obtains title to
these items by bequest or intestate succession may retain title for
not more than one year, but actual possession of these items at any
time is punishable pursuant to Section 12021, 12021.1, or 12101 of
this code or Section 8100 or 8103 of the Welfare and Institutions
Code. Within the year the person shall transfer title to the
firearms or ammunition by sale, gift, or other disposition. Any
person who violates this paragraph is in violation of subdivision
(a).
(8) Any other weapon as defined in subsection (e) of Section 5845
of Title 26 of the United States Code and which is in the possession
of a person permitted to possess the weapons pursuant to the federal
Gun Control Act of 1968 (Public Law 90-618), as amended, and the
regulations issued pursuant thereto. Any person prohibited by
Section 12021, 12021.1, or 12101 of this code or Section 8100 or 8103
of the Welfare and Institutions Code from possessing these weapons
who obtains title to these weapons by bequest or intestate succession
may retain title for not more than one year, but actual possession
of these weapons at any time is punishable pursuant to Section 12021,
12021.1, or 12101 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code. Within the year, the person shall
transfer title to the weapons by sale, gift, or other disposition.
Any person who violates this paragraph is in violation of subdivision
(a). The exemption provided in this subdivision does not apply to
pen guns.
(9) Instruments or devices that are possessed by federal, state,
and local historical societies, museums, and institutional
collections which are open to the public, provided that these
instruments or devices are properly housed, secured from unauthorized
handling, and, if the instrument or device is a firearm, unloaded.
(10) Instruments or devices, other than short-barreled shotguns or
short-barreled rifles, that are possessed or utilized during the
course of a motion picture, television, or video production or
entertainment event by an authorized participant therein in the
course of making that production or event or by an authorized
employee or agent of the entity producing that production or event.
(11) Instruments or devices, other than short-barreled shotguns or
short-barreled rifles, that are sold by, manufactured by, exposed or
kept for sale by, possessed by, imported by, or lent by persons who
are in the business of selling instruments or devices listed in
subdivision (a) solely to the entities referred in paragraphs (9) and
(10) when engaging in transactions with those entities.
(12) The sale to, possession of, or purchase of any weapon,
device, or ammunition, other than a short-barreled rifle or
short-barreled shotgun, by any federal, state, county, city and
county, or city agency that is charged with the enforcement of any
law for use in the discharge of their official duties, or the
possession of any weapon, device, or ammunition, other than a
short-barreled rifle or short-barreled shotgun, by peace officers
thereof when on duty and the use is authorized by the agency and is
within the course and scope of their duties.
(13) Weapons, devices, and ammunition, other than a short-barreled
rifle or short-barreled shotgun, that are sold by, manufactured by,
exposed, or kept for sale by, possessed by, imported by, or lent by,
persons who are in the business of selling weapons, devices, and
ammunition listed in subdivision (a) solely to the entities referred
to in paragraph (12) when engaging in transactions with those
entities.
(14) The manufacture for, sale to, exposing or keeping for sale
to, importation of, or lending of wooden clubs or batons to special
police officers or uniformed security guards authorized to carry any
wooden club or baton pursuant to Section 12002 by entities that are
in the business of selling wooden batons or clubs to special police
officers and uniformed security guards when engaging in transactions
with those persons.
(15) Any instrument, ammunition, weapon, or device listed in
subdivision (a), other than a short-barreled rifle or short-barreled
shotgun, that is found and possessed by a person who is not
prohibited from possessing firearms or ammunition pursuant to Section
12021, 12021.1, or paragraph (1) of subdivision (b) of Section 12316
of this code or Section 8100 or 8103 of the Welfare and Institutions
Code and is transporting the listed item to a law enforcement agency
for disposition according to law.
(16) The possession of any weapon, device, or ammunition, by a
forensic laboratory or any authorized agent or employee thereof in
the course and scope of his or her authorized activities.
(17) A dirk or dagger that is carried in a backpack, tool belt,
tackle box, briefcase, purse, or similar container that is used to
carry or transport possessions.
(c) (1) As used in this section, a "short-barreled shotgun" means
any of the following:
(A) A firearm which is designed or redesigned to fire a fixed
shotgun shell and having a barrel or barrels of less than 18 inches
in length.
(B) A firearm which has an overall length of less than 26 inches
and which is designed or redesigned to fire a fixed shotgun shell.
(C) Any weapon made from a shotgun (whether by alteration,
modification, or otherwise) if that weapon, as modified, has an
overall length of less than 26 inches or a barrel or barrels of less
than 18 inches in length.
(D) Any device which may be readily restored to fire a fixed
shotgun shell which, when so restored, is a device defined in
subparagraphs (A) to (C), inclusive.
(E) Any part, or combination of parts, designed and intended to
convert a device into a device defined in subparagraphs (A) to (C),
inclusive, or any combination of parts from which a device defined in
subparagraphs (A) to (C), inclusive, can be readily assembled if
those parts are in the possession or under the control of the same
person.
(2) As used in this section, a "short-barreled rifle" means any of
the following:
(A) A rifle having a barrel or barrels of less than 16 inches in
length.
(B) A rifle with an overall length of less than 26 inches.
(C) Any weapon made from a rifle (whether by alteration,
modification, or otherwise) if that weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16
inches in length.
(D) Any device which may be readily restored to fire a fixed
cartridge which, when so restored, is a device defined in
subparagraphs (A) to (C), inclusive.
(E) Any part, or combination of parts, designed and intended to
convert a device into a device defined in subparagraphs (A) to (C),
inclusive, or any combination of parts from which a device defined in
subparagraphs (A) to (C), inclusive, may be readily assembled if
those parts are in the possession or under the control of the same
person.
(3) As used in this section, a "nunchaku" means an instrument
consisting of two or more sticks, clubs, bars or rods to be used as
handles, connected by a rope, cord, wire, or chain, in the design of
a weapon used in connection with the practice of a system of
self-defense such as karate.
(4) As used in this section, a "wallet gun" means any firearm
mounted or enclosed in a case, resembling a wallet, designed to be or
capable of being carried in a pocket or purse, if the firearm may be
fired while mounted or enclosed in the case.
(5) As used in this section, a "cane gun" means any firearm
mounted or enclosed in a stick, staff, rod, crutch, or similar
device, designed to be, or capable of being used as, an aid in
walking, if the firearm may be fired while mounted or enclosed
therein.
(6) As used in this section, a "flechette dart" means a dart,
capable of being fired from a firearm, which measures approximately
one inch in length, with tail fins which take up five-sixteenths of
an inch of the body.
(7) As used in this section, "metal knuckles" means any device or
instrument made wholly or partially of metal which is worn for
purposes of offense or defense in or on the hand and which either
protects the wearer's hand while striking a blow or increases the
force of impact from the blow or injury to the individual receiving
the blow. The metal contained in the device may help support the
hand or fist, provide a shield to protect it, or consist of
projections or studs which would contact the individual receiving a
blow.
(8) As used in this section, a "ballistic knife" means a device
that propels a knifelike blade as a projectile by means of a coil
spring, elastic material, or compressed gas. Ballistic knife does
not include any device which propels an arrow or a bolt by means of
any common bow, compound bow, crossbow, or underwater spear gun.
(9) As used in this section, a "camouflaging firearm container"
means a container which meets all of the following criteria:
(A) It is designed and intended to enclose a firearm.
(B) It is designed and intended to allow the firing of the
enclosed firearm by external controls while the firearm is in the
container.
(C) It is not readily recognizable as containing a firearm.
"Camouflaging firearm container" does not include any camouflaging
covering used while engaged in lawful hunting or while going to or
returning from a lawful hunting expedition.
(10) As used in this section, a "zip gun" means any weapon or
device which meets all of the following criteria:
(A) It was not imported as a firearm by an importer licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(B) It was not originally designed to be a firearm by a
manufacturer licensed pursuant to Chapter 44 (commencing with Section
921) of Title 18 of the United States Code and the regulations
issued pursuant thereto.
(C) No tax was paid on the weapon or device nor was an exemption
from paying tax on that weapon or device granted under Section 4181
and subchapters F (commencing with Section 4216) and G (commencing
with Section 4221) of Chapter 32 of Title 26 of the United States
Code, as amended, and the regulations issued pursuant thereto.
(D) It is made or altered to expel a projectile by the force of an
explosion or other form of combustion.
(11) As used in this section, a "shuriken" means any instrument,
without handles, consisting of a metal plate having three or more
radiating points with one or more sharp edges and designed in the
shape of a polygon, trefoil, cross, star, diamond, or other geometric
shape for use as a weapon for throwing.
(12) As used in this section, an "unconventional pistol" means a
firearm that does not have a rifled bore and has a barrel or barrels
of less than 18 inches in length or has an overall length of less
than 26 inches.
(13) As used in this section, a "belt buckle knife" is a knife
which is made an integral part of a belt buckle and consists of a
blade with a length of at least 21/2 inches.
(14) As used in this section, a "lipstick case knife" means a
knife enclosed within and made an integral part of a lipstick case.
(15) As used in this section, a "cane sword" means a cane, swagger
stick, stick, staff, rod, pole, umbrella, or similar device, having
concealed within it a blade that may be used as a sword or stiletto.
(16) As used in this section, a "shobi-zue" means a staff, crutch,
stick, rod, or pole concealing a knife or blade within it which may
be exposed by a flip of the wrist or by a mechanical action.
(17) As used in this section, a "leaded cane" means a staff,
crutch, stick, rod, pole, or similar device, unnaturally weighted
with lead.
(18) As used in this section, an "air gauge knife" means a device
that appears to be an air gauge but has concealed within it a
pointed, metallic shaft that is designed to be a stabbing instrument
which is exposed by mechanical action or gravity which locks into
place when extended.
(19) As used in this section, a "writing pen knife" means a device
that appears to be a writing pen but has concealed within it a
pointed, metallic shaft that is designed to be a stabbing instrument
which is exposed by mechanical action or gravity which locks into
place when extended or the pointed, metallic shaft is exposed by the
removal of the cap or cover on the device.
(20) As used in this section, a "rifle" means a weapon designed or
redesigned, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed cartridge to fire only a single
projectile through a rifled bore for each single pull of the trigger.
(21) As used in this section, a "shotgun" means a weapon designed
or redesigned, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed shotgun shell to fire through a
smooth bore either a number of projectiles (ball shot) or a single
projectile for each pull of the trigger.
(22) As used in this section, an "undetectable firearm" means any
weapon which meets one of the following requirements:
(A) When, after removal of grips, stocks, and magazines, it is not
as detectable as the Security Exemplar, by walk-through metal
detectors calibrated and operated to detect the Security Exemplar.
(B) When any major component of which, when subjected to
inspection by the types of X-ray machines commonly used at airports,
does not generate an image that accurately depicts the shape of the
component. Barium sulfate or other compounds may be used in the
fabrication of the component.
(C) For purposes of this paragraph, the terms "firearm," "major
component," and "Security Exemplar" have the same meanings as those
terms are defined in Section 922 of Title 18 of the United States
Code.
All firearm detection equipment newly installed in nonfederal
public buildings in this state shall be of a type identified by
either the United States Attorney General, the Secretary of
Transportation, or the Secretary of the Treasury, as appropriate, as
available state-of-the-art equipment capable of detecting an
undetectable firearm, as defined, while distinguishing innocuous
metal objects likely to be carried on one's person sufficient for
reasonable passage of the public.
(23) As used in this section, a "multiburst trigger activator"
means one of the following devices:
(A) A device designed or redesigned to be attached to a
semiautomatic firearm which allows the firearm to discharge two or
more shots in a burst by activating the device.
(B) A manual or power-driven trigger activating device constructed
and designed so that when attached to a semiautomatic firearm it
increases the rate of fire of that firearm.
(24) As used in this section, a "dirk" or "dagger" means a knife
or other instrument with or without a handguard that is capable of
ready use as a stabbing weapon that may inflict great bodily injury
or death. A nonlocking folding knife, a folding knife that is not
prohibited by Section 653k, or a pocketknife is capable of ready use
as a stabbing weapon that may inflict great bodily injury or death
only if the blade of the knife is exposed and locked into position.
(d) Knives carried in sheaths which are worn openly suspended from
the waist of the wearer are not concealed within the meaning of this
section.
SEC. 2. Section 12021 of the Penal Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, of the State of California, or
any other state, government, or country, or of an offense enumerated
in subdivision (a), (b), or (d) of Section 12001.6, or who is
addicted to the use of any narcotic drug, who owns or has in his or
her possession or under his or her custody or control any firearm is
guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns or has
in his or her possession or under his or her custody or control any
firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, who owns or has in his or her
possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
244.5, 245, 245.5, 246, 246.3, 247, 273.5, 273.6, 417, 417.1, 417.2,
417.6, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of
Section 12034, Section 12040, subdivision (b) of Section 12072,
subdivision (a) of former Section 12100, Section 12220, 12320, or
12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions
Code, any firearm-related offense pursuant to Sections 871.5 and
1001.5 of the Welfare and Institutions Code, or of the conduct
punished in paragraph (3) of subdivision (g) of Section 12072, and
who, within 10 years of the conviction, owns, or has in his or her
possession or under his or her custody or control,
any firearm is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
The court, on forms prescribed by the Department of Justice, shall
notify the department of persons subject to this subdivision.
However, the prohibition in this paragraph may be reduced,
eliminated, or conditioned as provided in paragraph (2) or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge that
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making
each of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision no matter when the prior conviction occurred.
In making its decision, the court shall consider the petitioner's
continued employment, the interest of justice, any relevant evidence,
and the totality of the circumstances. The court shall require, as
a condition of granting relief from the prohibition under this
section, that the petitioner agree to participate in counseling as
deemed appropriate by the court. Relief from the prohibition shall
not relieve any other person or entity from any liability that might
otherwise be imposed. It is the intent of the Legislature that
courts exercise broad discretion in fashioning appropriate relief
under this paragraph in cases in which relief is warranted. However,
nothing in this paragraph shall be construed to require courts to
grant relief to any particular petitioner. It is the intent of the
Legislature to permit persons who were convicted of an offense
specified in Section 273.5, 273.6, or 646.9 to seek relief from the
prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1), may petition the court only
once for relief from this prohibition. The petition shall be filed
with the court in which the petitioner was sentenced. If possible,
the matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision, no matter when the prior conviction occurred.
In making its decision, the court may consider the interest of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing in
this paragraph shall be construed to require courts to grant relief
to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3), shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, or has in his or her
possession or under his or her custody or control, any firearm but
who is not subject to subdivision (a) or (c) is guilty of a public
offense, which shall be punishable by imprisonment in a county jail
not exceeding one year or in the state prison, by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine. The court, on forms provided by the Department of
Justice, shall notify the department of persons subject to this
subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, or any offense enumerated in paragraph (1) of subdivision
(c), (2) is found to be a fit and proper subject to be dealt with
under the juvenile court law, and (3) is subsequently adjudged a ward
of the juvenile court within the meaning of Section 602 of the
Welfare and Institutions Code because the person committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, or any offense enumerated in paragraph (1) of subdivision
(c) shall not own, or have in his or her possession or under his or
her custody or control, any firearm until the age of 30 years. A
violation of this subdivision shall be punishable by imprisonment in
a county jail not exceeding one year or in the state prison, by a
fine not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine. The juvenile court, on forms prescribed by
the Department of Justice, shall notify the department of persons
subject to this subdivision. Notwithstanding any other law, the
forms required to be submitted to the department pursuant to this
subdivision may be used to determine eligibility to acquire a
firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is subject to a
protective order as defined in Section 6218 of the Family Code, or a
temporary restraining order or injunction issued pursuant to Section
527.6 or 527.8 of the Code of Civil Procedure, is guilty of a public
offense, which shall be punishable by imprisonment in a county jail
not exceeding one year or in the state prison, by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine. This subdivision does not apply unless the copy of the
restraining order personally served on the person against whom the
restraining order is issued contains a notice in bold print stating
(1) that the person is prohibited from purchasing or receiving or
attempting to purchase or receive a firearm and (2) specifying the
penalties for violating this subdivision, or a court has provided
actual verbal notice of the firearm prohibition and penalty as
provided in Section 6304 of the Family Code. However, this
subdivision does not apply if the firearm is received as part of the
disposition of community property pursuant to Division 7 (commencing
with Section 2500) of the Family Code.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was necessary
to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
SEC. 3. Section 12026.2 of the Penal Code is amended to read:
12026.2. (a) Section 12025 does not apply to, or affect, any of
the following:
(1) The possession of a firearm by an authorized participant in a
motion picture, television, or video production or entertainment
event when the participant lawfully uses the firearm as part of that
production or event or while going directly to, or coming directly
from, that production or event.
(2) The possession of a firearm in a locked container by a member
of any club or organization, organized for the purpose of lawfully
collecting and lawfully displaying pistols, revolvers, or other
firearms, while the member is at meetings of the clubs or
organizations or while going directly to, and coming directly from,
those meetings.
(3) The transportation of a firearm by a participant when going
directly to, or coming directly from, a recognized safety or hunter
safety class, or a recognized sporting event involving that firearm.
(4) The transportation of a firearm by a person listed in Section
12026 directly between any of the places mentioned in Section 12026.
(5) The transportation of a firearm by a person when going
directly to, or coming directly from, a fixed place of business or
private residential property for the purpose of the lawful repair or
the lawful transfer, sale, or loan of that firearm.
(6) The transportation of a firearm by a person listed in Section
12026 when going directly from the place where that person lawfully
received that firearm to that person's place of residence or place of
business or to private property owned or lawfully possessed by that
person.
(7) The transportation of a firearm by a person when going
directly to, or coming directly from, a gun show, swap meet, or
similar event to which the public is invited, for the purpose of
displaying that firearm in a lawful manner.
(8) The transportation of a firearm by an authorized employee or
agent of a supplier of firearms when going directly to, or coming
directly from, a motion picture, television, or video production or
entertainment event for the purpose of providing that firearm to an
authorized participant to lawfully use as a part of that production
or event.
(9) The transportation of a firearm by a person when going
directly to, or coming directly from, a target range, which holds a
regulatory or business license, for the purposes of practicing
shooting at targets with that firearm at that target range.
(10) The transportation of a firearm by a person when going
directly to, or coming directly from, a place designated by a person
authorized to issue licenses pursuant to Section 12050 when done at
the request of the issuing agency so that the issuing agency can
determine whether or not a license should be issued to that person to
carry that firearm.
(11) The transportation of a firearm by a person when going
directly to, or coming directly from, a law enforcement agency for
the purpose of a lawful transfer, sale, or loan of that firearm
pursuant to Section 12084.
(12) The transportation of a firearm by a person when going
directly to, or coming directly from, a lawful camping activity for
the purpose of having that firearm available for lawful personal
protection while at the lawful campsite. This paragraph shall not be
construed to override the statutory authority granted to the
Department of Parks and Recreation or any other state or local
governmental agencies to promulgate rules and regulations governing
the administration of parks and campgrounds.
(13) The transportation of a firearm by a person in order to
comply with subdivision (c) or (i) of Section 12078 as it pertains to
that firearm.
(14) The transportation of a firearm by a person in order to
utilize subdivision (l) of Section 12078 as it pertains to that
firearm.
(15) The transportation of a firearm by a person when going
directly to, or coming directly from, a gun show or event, as defined
in Section 178.100 of Title 27 of the Code of Federal Regulations,
for the purpose of lawfully transferring, selling, or loaning that
firearm in accordance with subdivision (d) of Section 12072.
(16) The transportation of a firearm by a person in order to
utilize paragraph (3) of subdivision (a) of Section 12078 as it
pertains to that firearm.
(17) The transportation of a firearm by a person who finds the
firearm in order to comply with Article 1 (commencing with Section
2080) of Chapter 4 of Division 3 of the Civil Code as it pertains to
that firearm.
(18) The transportation of a firearm by a person who finds the
firearm and is transporting it to a law enforcement agency for
disposition according to law.
(b) In order for a firearm to be exempted under subdivision (a),
while being transported to or from a place, the firearm shall be
unloaded, kept in a locked container, as defined in subdivision (d),
and the course of travel shall include only those deviations between
authorized locations as are reasonably necessary under the
circumstances.
(c) This section does not prohibit or limit the otherwise lawful
carrying or transportation of any pistol, revolver, or other firearm
capable of being concealed upon the person in accordance with this
chapter.
(d) As used in this section, "locked container" means a secure
container which is fully enclosed and locked by a padlock, key lock,
combination lock, or similar locking device. The term "locked
container" does not include the utility or glove compartment of a
motor vehicle.
SEC. 4. Section 12076 of the Penal Code is amended to read:
12076. (a) (1) Before January 1, 1998, the department shall
determine the method by which a dealer shall submit firearm purchaser
information to the department and the information shall be in one of
the following formats:
(A) Submission of the register described in Section 12077.
(B) Electronic or telephonic transfer of the information contained
in the register described in Section 12077.
(2) On or after January 1, 1998, electronic or telephonic
transfer, including voice or facsimile transmission, shall be the
exclusive means by which purchaser information is transmitted to the
department.
(b) (1) Where the register is used, the purchaser of any firearm
shall be required to present clear evidence of his or her identity
and age, as defined in Section 12071, to the dealer, and the dealer
shall require him or her to sign his or her current legal name and
affix his or her residence address and date of birth to the register
in quadruplicate. The salesperson shall affix his or her signature
to the register in quadruplicate as a witness to the signature and
identification of the purchaser. Any person furnishing a fictitious
name or address or knowingly furnishing any incorrect information or
knowingly omitting any information required to be provided for the
register and any person violating any provision of this section is
guilty of a misdemeanor.
(2) The original of the register shall be retained by the dealer
in consecutive order. Each book of 50 originals shall become the
permanent register of transactions that shall be retained for not
less than three years from the date of the last transaction and shall
be available for the inspection of any peace officer, Department of
Justice employee designated by the Attorney General, or agent of the
federal Bureau of Alcohol, Tobacco, and Firearms upon the
presentation of proper identification, but no information shall be
compiled therefrom regarding the purchasers or other transferees of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person.
(3) Two copies of the original sheet of the register, on the date
of the application to purchase, shall be placed in the mail, postage
prepaid, and properly addressed to the Department of Justice in
Sacramento.
(4) If requested, a photocopy of the original shall be provided to
the purchaser by the dealer.
(5) If the transaction is one conducted pursuant to Section 12082,
a photocopy of the original shall be provided to the seller by the
dealer, upon request.
(c) (1) Where the electronic or telephonic transfer of applicant
information is used, the purchaser shall be required to present clear
evidence of his or her identity and age, as defined in Section
12071, to the dealer, and the dealer shall require him or her to sign
his or her current legal name to the record of electronic or
telephonic transfer. The salesperson shall affix his or her
signature to the record of electronic or telephonic transfer as a
witness to the signature and identification of the purchaser. Any
person furnishing a factitious name or address or knowingly
furnishing any incorrect information or knowingly omitting any
information required to be provided for the electronic or telephonic
transfer and any person violating any provision of this section is
guilty of a misdemeanor.
(2) The record of applicant information shall be transmitted to
the Department of Justice in Sacramento by electronic or telephonic
transfer on the date of the application to purchase.
(3) The original of each record of electronic or telephonic
transfer shall be retained by the dealer in consecutive order. Each
original shall become the permanent record of the transaction that
shall be retained for not less than three years from the date of the
last transaction and shall be provided for the inspection of any
peace officer, Department of Justice employee designated by the
Attorney General, or agent of the federal Bureau of Alcohol, Tobacco,
and Firearms, upon the presentation of proper identification, but no
information shall be compiled therefrom regarding the purchasers or
other transferees of firearms that are not pistols, revolvers, or
other firearms capable of being concealed upon the person.
(4) If requested, a copy of the record of electronic or telephonic
transfer shall be provided to the purchaser by the dealer.
(5) If the transaction is one conducted pursuant to Section 12082,
a copy shall be provided to the seller by the dealer, upon request.
(d) (1) The department shall examine its records, as well as those
records that it is authorized to request from the State Department
of Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is a person
described in Section 12021 or 12021.1 of this code or Section 8100
or 8103 of the Welfare and Institutions Code.
(2) If the department determines that the purchaser is a person
described in Section 12021 or 12021.1 of this code or Section 8100 or
8103 of the Welfare and Institutions Code, it shall immediately
notify the dealer and the chief of the police department of the city
or county in which the sale was made, or if the sale was made in a
district in which there is no municipal police department, the
sheriff of the county in which the sale was made, of that fact.
(3) If the department determines that the copies of the register
submitted to it pursuant to paragraph (3) of subdivision (b) contain
any blank spaces or inaccurate, illegible, or incomplete information,
preventing identification of the purchaser or the pistol, revolver,
or other firearm to be purchased, or if any fee required pursuant to
subdivision (e) is not submitted by the dealer in conjunction with
submission of copies of the register, the department may notify the
dealer of that fact. Upon notification by the department, the dealer
shall submit corrected copies of the register to the department, or
shall submit any fee required pursuant to subdivision (e), or both,
as appropriate and, if notification by the department is received by
the dealer at any time prior to delivery of the firearm to be
purchased, the dealer shall withhold delivery until the conclusion of
the waiting period described in Sections 12071 and 12072.
(4) If the department determines that the information transmitted
to it pursuant to subdivision (c) contains inaccurate or incomplete
information preventing identification of the purchaser or the pistol,
revolver, or other firearm capable of being concealed upon the
person to be purchased, or if the fee required pursuant to
subdivision (e) is not transmitted by the dealer in conjunction with
transmission of the electronic or telephonic record, the department
may notify the dealer of that fact. Upon notification by the
department, the dealer shall transmit corrections to the record of
electronic or telephonic transfer to the department, or shall
transmit any fee required pursuant to subdivision (e), or both, as
appropriate, and if notification by the department is received by the
dealer at any time prior to delivery of the firearm to be purchased,
the dealer shall withhold delivery until the conclusion of the
waiting period described in Sections 12071 and 12072.
(e) The Department of Justice may charge the dealer a fee not to
exceed fourteen dollars ($14), except that the fee may be increased
at a rate not to exceed any increase in the California Consumer Price
Index as compiled and reported by the California Department of
Industrial Relations. The fee shall be no more than is sufficient to
reimburse all of the following, and is not to be used to directly
fund or as a loan to fund any other program:
(1) (A) The department for the cost of furnishing this
information.
(B) The department for the cost of meeting its obligations under
paragraph (2) of subdivision (b) of Section 8100 of the Welfare and
Institutions Code.
(2) Local mental health facilities for state-mandated local costs
resulting from the reporting requirements imposed by the amendments
to Section 8103 of the Welfare and Institutions Code.
(3) The State Department of Mental Health for the costs resulting
from the requirements imposed by the amendments to Section 8104 of
the Welfare and Institutions Code.
(4) Local mental hospitals, sanitariums, and institutions for
state-mandated local costs resulting from the reporting requirements
imposed by Section 8105 of the Welfare and Institutions Code.
(5) Local law enforcement agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code.
(6) Local law enforcement agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(c) of Section 8105 of the Welfare and Institutions Code.
(7) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
The fee established pursuant to this subdivision shall not exceed
the sum of the actual processing costs of the department, the
estimated reasonable costs of the local mental health facilities for
complying with the reporting requirements imposed by paragraph (2) of
this subdivision, the costs of the State Department of Mental Health
for complying with the requirements imposed by paragraph (3) of this
subdivision, the estimated reasonable costs of local mental
hospitals, sanitariums, and institutions for complying with the
reporting requirements imposed by paragraph (4) of this subdivision,
the estimated reasonable costs of local law enforcement agencies for
complying with the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code, and the estimated reasonable
costs of local law enforcement agencies for complying with the
notification requirements set forth in subdivision (c) of Section
8105 of the Welfare and Institutions Code imposed by paragraph (6) of
this subdivision.
(f) (1) The Department of Justice may charge a fee sufficient to
reimburse it for each of the following but not to exceed fourteen
dollars ($14), except that the fee may be increased at a rate not to
exceed any increase in the California Consumer Price Index as
compiled and reported by the California Department of Industrial
Relations:
(A) For the actual costs associated with the preparation, sale,
processing, and filing of forms or reports required or utilized
pursuant to Section 12078 if neither a dealer nor a law enforcement
agency acting pursuant to Section 12084 is filing the form or report.
(B) For the actual processing costs associated with the submission
of a Dealers' Record of Sale to the department by a dealer or of the
submission of a LEFT to the department by a law enforcement agency
acting pursuant to Section 12084 if the waiting period described
in Sections 12071, 12072, and
12084 does not apply.
(C) For the actual costs associated with the preparation, sale,
processing, and filing of reports utilized pursuant to subdivision
(l) of Section 12078 or paragraph (18) of subdivision (b) of Section
12071.
(D) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
(2) If the department charges a fee pursuant to subparagraph (B)
of paragraph (1) of this subdivision, it shall be charged in the same
amount to all categories of transaction that are within that
subparagraph.
(3) Any costs incurred by the Department of Justice to implement
this subdivision shall be reimbursed from fees collected and charged
pursuant to this subdivision. No fees shall be charged to the dealer
pursuant to subdivision (e) or to a law enforcement agency acting
pursuant to paragraph (6) of subdivision (d) of Section 12084 for
costs incurred for implementing this subdivision.
(g) All money received by the department pursuant to this section
shall be deposited in the Dealers' Record of Sale Special Account of
the General Fund, which is hereby created, to be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred pursuant to this section and Sections
12289 and 12809.
(h) Where the electronic or telephonic transfer of applicant
information is used, the department shall establish a system to be
used for the submission of the fees described in subdivision (e) to
the department.
(i) (1) Only one fee shall be charged pursuant to this section for
a single transaction on the same date for the sale of any number of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person or for the taking of possession of
those firearms.
(2) In a single transaction on the same date for the delivery of
any number of firearms that are pistols, revolvers, or other firearms
capable of being concealed upon the person, the department shall
charge a reduced fee pursuant to this section for the second and
subsequent firearms that are part of that transaction.
(j) Only one fee shall be charged pursuant to this section for a
single transaction on the same date for taking title or possession of
any number of firearms pursuant to paragraph (18) of subdivision (b)
of Section 12071 or subdivision (c) or (i) of Section 12078.
(k) Whenever the Department of Justice acts pursuant to this
section as it pertains to firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, the
department's acts or omissions shall be deemed to be discretionary
within the meaning of the California Tort Claims Act pursuant to
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code.
(l) As used in this section, the following definitions apply:
(1) "Purchaser" means the purchaser or transferee of a firearm or
a person being loaned a firearm.
(2) "Purchase" means the purchase, loan, or transfer of a firearm.
(3) "Sale" means the sale, loan, or transfer of a firearm.
(4) "Seller" means, if the transaction is being conducted pursuant
to Section 12082, the person selling, loaning, or transferring the
firearm.
SEC. 5. Section 12092 of the Penal Code is amended to read:
12092. The Department of Justice upon request may assign a
distinguishing number or mark of identification to any firearm
whenever it is without a manufacturer's number, or other mark of
identification or whenever the manufacturer's number or other mark of
identification or the distinguishing number or mark assigned by the
department has been destroyed or obliterated.
SEC. 6. Section 12094 of the Penal Code is amended to read:
12094. (a) Any person with knowledge of any change, alteration,
removal, or obliteration described herein, who buys, receives,
disposes of, sells, offers for sale, or has in his possession any
pistol, revolver, or other firearm which has had the name of the
maker, model, or the manufacturer's number or other mark of
identification including any distinguishing number or mark assigned
by the Department of Justice changed, altered, removed, or
obliterated is guilty of a misdemeanor.
(b) Subdivision (a) does not apply to any of the following:
(1) The acquisition or possession of a firearm described in
subdivision (a) by any member of the military forces of the this
state or of the United States, while on duty and acting within the
scope and course of his or her employment.
(2) The acquisition or possession of a firearm described in
subdivision (a) by any peace officer described in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, while on duty and
acting within the scope and course of his or her employment.
(3) The acquisition or possession of a firearm described in
subdivision (a) by any employee of a forensic laboratory, while on
duty and acting within the scope and course of his or her employment.
(4) The possession and disposition of a firearm described in
subdivision (a) by a person who is not prohibited from possessing
firearms or ammunition pursuant to Section 12021, 12021.1, or
paragraph (1) of subdivision (b) of Section 12316 of this code, or
Section 8100 or 8103 of the Welfare and Institutions Code if he or
she is transporting and transferring the firearm to a law enforcement
agency for that agency's disposition according to law.
SEC. 7. Section 12201 of the Penal Code is amended to read:
12201. Nothing in this chapter shall affect or apply to any of
the following:
(a) The sale to, purchase by, or possession of machineguns by
police departments, sheriffs' offices, marshals' offices, district
attorneys' offices, the California Highway Patrol, the Department of
Justice, the Department of Corrections for use by the department's
Special Emergency Response Teams and Law Enforcement
Liaison/Investigations Unit, or the military or naval forces of this
state or of the United States for use in the discharge of their
official duties.
(b) The possession of machineguns by regular, salaried, full-time
peace officer members of a police department, sheriff's office,
marshal's office, district attorney's office, the California Highway
Patrol, the Department of Justice, or the Department of Corrections
for use by the department's Special Emergency Response Teams and Law
Enforcement Liaison/Investigations Unit when on duty and if the use
is within the scope of their duties.
SEC. 8. Section 12316 of the Penal Code is amended to read:
12316. (a) Any person, corporation, or dealer who sells
ammunition or reloaded ammunition to a person knowing that person to
be a minor under 18 years of age shall be punished by imprisonment in
a county jail for a term not to exceed six months, or by a fine not
to exceed one thousand dollars ($1,000), or by both the imprisonment
and fine.
Proof that a person, corporation, or dealer, or his or her agent
or employee, demanded, was shown, and acted in reliance upon, bona
fide evidence of majority and identity shall be a defense to any
criminal prosecution under this subdivision. As used in this
subdivision, "bona fide evidence of majority and identity" means a
document issued by a federal, state, county, or municipal government,
or subdivision or agency thereof, including, but not limited to, a
motor vehicle operator's license, California state identification
card, identification card issued to a member of the armed forces, or
other form of identification that bears the name, date of birth,
description, and picture of the person.
(b) (1) No person prohibited from owning or possessing a firearm
under Section 12021 or 12021.1 of this code or Section 8100 or 8103
of the Welfare and Institutions Code shall own, possess, or have
under his or her custody or control, any ammunition or reloaded
ammunition.
(2) For purposes of this subdivision, "ammunition" shall include,
but not be limited to, any bullet, cartridge, magazine, clip, speed
loader, autoloader, or projectile capable of being fired from a
firearm with a deadly consequence.
(3) A violation of this subdivision is punishable by imprisonment
in a county jail not to exceed one year or in the state prison, by a
fine not to exceed one thousand dollars ($1,000), or by both the fine
and imprisonment.
(c) Unless it is with the written permission of the school
district superintendent, his or her designee, or equivalent school
authority, no person shall carry ammunition or reloaded ammunition
onto school grounds, except sworn law enforcement officers acting
within the scope of their duties or persons exempted under
subparagraph (A) of paragraph (1) of subdivision (a) of Section
12027. This subdivision shall not apply to a duly appointed peace
officer as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2, a full-time paid peace officer of another state or
the federal government who is carrying out official duties while in
California, any person summoned by any of these officers to assist in
making an arrest or preserving the peace while he or she is actually
engaged in assisting the officer, a member of the military forces of
this state or of the United States who is engaged in the performance
of his or her duties, a person holding a valid license to carry the
firearm pursuant to Article 3 (commencing with Section 12050) of
Chapter 1 of Title 2 of Part 4, or an armored vehicle guard, who is
engaged in the performance of his or her duties, as defined in
subdivision (e) of Section 7521 of the Business and Professions Code.
A violation of this subdivision is punishable by imprisonment in a
county jail for a term not to exceed six months, a fine not to exceed
one thousand dollars ($1,000), or both the imprisonment and fine.
(d) (1) A violation of paragraph (1) of subdivision (b) is
justifiable where all of the following conditions are met:
(A) The person found the ammunition or reloaded ammunition or took
the ammunition or reloaded ammunition from a person who was
committing a crime against him or her.
(B) The person possessed the ammunition or reloaded ammunition no
longer than was necessary to deliver or transport the ammunition or
reloaded ammunition to a law enforcement agency for that agency's
disposition according to law.
(C) The person is prohibited from possessing any ammunition or
reloaded ammunition solely because that person is prohibited from
owning or possessing a firearm only by virtue of Section 12021.
(2) Upon the trial for violating paragraph (1) of subdivision (b),
the trier of fact shall determine whether the defendant is subject
to the exemption created by this subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she is subject to the exemption provided by
this subdivision.
SEC. 9. Section 12322 of the Penal Code is amended to read:
12322. Nothing in this chapter shall apply to or affect either of
the following:
(a) The sale to, purchase by, possession of, or use of any
ammunition by any member of the Army, Navy, Air Force, or Marine
Corps of the United States, or the National Guard, while on duty and
acting within the scope and course of his or her employment, or any
police agency or forensic laboratory or any person who is the holder
of a valid permit issued pursuant to Section 12305.
(b) The possession of handgun ammunition designed primarily to
penetrate metal or armor by a person who found the ammunition, if he
or she is not prohibited from possessing firearms or ammunition
pursuant to Section 12021, 12021.1, or paragraph (1) of subdivision
(b) of Section 12316 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code and is transporting the ammunition to a
law enforcement agency for disposition according to law.
SEC. 10. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of
Justice of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 12303.1, 12303.2, 12303.3, 12308,
12309, or 12310 of the Penal Code, or of a felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, or a violation of the law of any other state
or the United States that includes all the elements of any of the
above felonies as defined under California law, shall purchase or
receive, or attempt to purchase or receive, or have in his or her
possession or under his or her custody or control any firearm or any
other deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the department, and shall be
used only to determine eligibility to purchase or possess firearms or
other deadly weapons. Any person who knowingly furnishes that
information for any other purpose is guilty of a misdemeanor. All
the information concerning any person shall be destroyed upon receipt
by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of five years. A person
described in the preceding sentence, however, may own, possess,
control, receive, or purchase, or attempt to own, possess, control,
receive, or purchase any firearm if the superior court has, pursuant
to paragraph (4), upon petition of the person, found, by a
preponderance of the evidence, that the person is likely to use
firearms in a safe and lawful manner. Any person who meets the
criteria contained in subdivision (e) who is released from intensive
treatment shall nevertheless remain subject to the prohibition
contained in subdivision (e).
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of certification, submit a report to
the Department of Justice, on a form prescribed by the department,
containing information that includes, but is not limited to, the
identity of the person and the legal grounds upon which the person
was certified. Additionally, all facilities shall report to the
Department of Justice upon the discharge of persons for whom reports
have been submitted pursuant to this subdivision. However, a report
shall not be filed pursuant to this subdivision for persons who are
discharged within 31 days after the date of admission.
(B) Any report prescribed by this subdivision shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may petition a
court, as provided in this subdivision, for an order permitting the
person to own, possess, control, receive, or purchase a firearm.
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The People of the State of California shall
be the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition who shall provide
information about the detention of the person that may be relevant to
the court and shall file that information with the superior court.
That information shall be disclosed to the person and to the district
attorney. The court, upon motion of the person subject to paragraph
(1) establishing that confidential information is likely to be
discussed during the hearing that would cause harm to the person,
shall conduct the hearing in camera with only the relevant parties
present, unless the court finds that the public interest would be
better served by conducting the hearing in public. Notwithstanding
any other law, declarations, police reports, including criminal
history information, and any other material and relevant evidence
that is not excluded under Section 352 of the Evidence Code, shall be
admissible at the hearing under this section. If the court finds by
a preponderance of the evidence that the person would be likely to
use firearms in a safe and lawful manner, the court may order that
the person may own, control, receive, possess, or purchase firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall delete
any reference to the prohibition against firearms from the person's
state summary criminal history information.
(5) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment in the state prison or
in a county jail for not more than one year.
(h) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 11. It is the intent of the Legislature, in enacting the
amendments to Section 12076 of the Penal Code and Section 8103 of the
Welfare and Institutions Code made by this act, to comply with the
decision of the Superior Court of the State of California in and for
the County of Sacramento in Dayacamos v. Department of Justice, Case
No. 96 CS 01471.