BILL ANALYSIS
AB 78
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Date of Hearing: April 8, 1997
Chief Counsel: Judith M. Garvey
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Robert M. Hertzberg, Chair
AB 78 (Granlund) - As Amended: March 20, 1997
SUMMARY : Makes a series of changes to California's firearms and
weapons laws to address issues raised in several recent Court of
Appeals decisions and a letter in the Assembly Journal.
Specifically, this bill :
1) Creates a locked container exemption for persons who are not in
a prohibited class to transport to law enforcement agency
handguns they find for disposition according to law.
2) Allows persons not otherwise prohibited from possessing
firearms to possess incident to transportation to transport
certain firearms and ammunition to law enforcement agencies of
those items they find for disposition according to law.
3) Allows non-violent, prohibited persons who are not mentally
infirm to avoid prosecution on possession of conventional
firearms where they deliver conventional firearms to law
enforcement agencies which they find.
4) Rewrites a relief from disability statute to conform to a
ruling of the Court of Appeal and in so doing permits 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.
5) Exempts from the prohibition against the manufacture, import,
sale, giving, lending, or possession of specified weapons and
firearms, 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.
6) Excludes from the definition of "dirk or dagger", a
non-locking folding knife, a folding knife that is not a
switchblade knife having a blade two or more inches in length, or
a pocketknife 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.
7) Codifies case law that a dirk or dagger is not concealed upon
the person where the 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.
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EXISTING LAW :
1) Provides it is illegal to carry a concealed "dirk or dagger"
upon one's
person. (Penal Code Section 12020(a).)
2) Provides it is illegal to carry a concealed handgun on one's
person or in a vehicle. (Penal Code Section 12025.) There are
numerous exemptions from this prohibition. (Penal Code
Sections 12026, 12026.1, 12026.2, and 12027.)
3) Prohibits the manufacture, import, sale, giving, lending, or
possession of specified weapons and firearms. (Penal Code
Section 12020.)
4) Prohibits the manufacture, import, sale, giving, lending, or
possession of armor-piercing ammunition. (Penal Code Sections
12320 to 12323.)
5) Prohibits felons, violent misdemeanants, the mentally infirm,
drug addicts, and the like from possessing any firearm or
ammunition. (Penal Code Sections 12021 and 12021.1, and
Welfare and Institutions Code Section 8100 and 8103.)
6) Provides that 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. (Penal Code Section 12021.)
COMMENTS :
1) Author's Statement . According to the author, "AB 78 addresses
certain 'odds and ends' weapons issues that have come to light by
virtue of the lost and found property issue and two issues raised
by constituents of mine.
"The first issue relates to the transportation and possession
of weapons that individuals discover and attempt to turn over
to local law enforcement agencies. This issue was raised in
connection with the the recovery of lost property.
"Also, Justice Art McKinster who is a Justice of the Court of
Appeal in San Bernardino noted in In re Evans 49 Cal.App.4th
1263 that the relief from disabilities provisions in Penal Code
section 12021(c)(3) as drafted violated the 'equal protection
clauses' of the state and federal constitutions.
"To save the statute from invalidity, Justice McKinster rewrote
the statute to allow anyone who was convicted of an offense
subject to the 10 year prohibition prior to the offense being
added to the list of offense for which the 10 year prohibition
applied to apply once for relief from the disability imposed by
the prohibition. AB 78 codifies Justice McKinster's opinion."
2) Relief from Disabilities . In re Evans (1996) 49 Cal.App.4th
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1263, the Court of Appeals held that the "relief from
disabilities provisions" in Penal Code Section 12021(c)(3) as
drafted violated the "Equal Protection Clauses" of the State
and Federal Constitutions. Evans involved a defendant who was
convicted of possessing a gun after he had been convicted of
spousal abuse. His conviction of spousal abuse occurred after
January 1, 1991, but prior to the offense of spousal abuse
barring gun possession for 10 years. That occurred in 1993.
Evans challenged his gun conviction that had he been convicted
of spousal abuse prior to 1991, he could have claimed relief.
In agreeing with his claim, the Court of Appeal noted that the
January 1, 1991 date was irrational as to persons where the
offense barring possession was added to the list after January
1, 1991.
There are approximately 25 offenses added to the 10-year
prohibition after January 1, 1991. To save the statute from
invalidity, the Court of Appeal rewrote the statute to allow
anyone who was convicted of an offense subject to the 10-year
prohibition prior to the offense being added to the list of
offenses for which the 10-year prohibition applied to apply
once for relief from the disability imposed by the prohibition.
3) Persons Who Turn In Weapons .
a) Case Law . Under current California law, there are no
statutory "safe harbor" exemptions for persons who may or
may not be in prohibited classes who discover weapons or
devices and endeavor to turn them over to law enforcement
agencies.
This issue has been discussed by the Court of Appeals in
People v. Hurtado (1996) 47 Cal.App.4th. 805 and People v.
Pepper (1996) 41 Cal.App.4th 1029 in the context of
prohibited persons, i.e., persons who cannot legally
possess any firearm. One court felt the exemption existed,
but held that the defendant could not claim it. The other
court disallowed the exemption period.
b) AB 78 . This bill creates distinct safe harbor exemptions
for persons who are not, per se, legally prohibited from
possessing weapons and for those persons prohibited from
possessing weapons. The author believes that these
exemptions should be placed on a statutory basis.
c) Specific Provisions as to Non-Prohibited Persons . As to
non-prohibited persons, they may legally transport
conventional firearms and certain contraband to law
enforcement agencies provided certain conditions are met.
The bill covers the following items:
i. Handguns . The Civil Code contains specific
provisions on the responsibilities of finders of lost
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property. There is no Penal Code concealed carry
exemption for the safe transport of lost handguns to a
law enforcement agency.
This bill amends the locked container exemption
section to add two specific exemptions to allow 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 and 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.
Since this bill adds to a laundry list of exemptions,
as is the case with the other exemptions, in order for
a firearm to be exempted while being transported to or
from a place, the firearm shall be unloaded, kept in a
locked container and the course of travel shall
include only those deviations between authorized
locations as are reasonably necessary under the circumstances.
Under current law, a "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.
ii. 12020 Items . Penal Code Section 12020 bans the
manufacture, distribution, importation and possession of
most illegal firearms and certain forms of ammunition.
These items include a cane gun or a wallet gun, an
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 multi-burst
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.
AB 78 would allow possession incident to transport of
all Section 12020 items other than a short-barreled
rifle or short-barreled shotgun found and possessed by
a person who is not generally prohibited from
possessing firearms or ammunition and is transporting
the listed item to a law enforcement agency for
disposition according to law.
iii. Armor-Piercing Ammunition . Armor-piercing
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ammunition (aka "cop killer bullets") are prohibited by
Penal Code Section 12320. Under this bill, a person who
found the ammunition may possess it incident to
transporting it to a law enforcement agency for disposition
according to law if he or she is not in a prohibited class
of person generally prohibited from possessing firearms or
ammunition.
As is the case of various weapons statutes, the
defendant has the burden that he or she falls under
the exemption.
d) Pepper-Hurtado Issue as to Prohibited Persons . As noted
above, case law suggests that felons and other prohibited
persons who take possession guns out of necessity and turn
them into a law enforcement agency may possess the same
incident to transportation thereto.
This bill makes justifiable a violation of Penal Code
Section 12021 (but not other statutes) a possession charge
where all of the following conditions are met:
i. The person found the firearm or took the firearm
from a person who was committing a crime against him or
her.
ii. 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.
iii. If the firearm was transported to a law enforcement
agency, it was transported in accordance with the locked
container rules.
iv. Upon the trial for violating the possession section,
the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by
this bill.
v. 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 bill.
Should there be an amendment to include the same language
in Penal Code Section 12316 (prohibited persons possessing
ammunition) to include the same provision limited to the
same persons set forth in Section 12021? Should not this
be done?
4) When are Knives Dirk or Daggers ?
a) AB 1222 (Martinez), Chapter 128, Statutes of 1995 . Last
year, Assembly Member Martinez wrote a letter in the
Assembly Journal clarified the meaning of AB 1222, which
revised the definition of a "dirk or dagger". The prior
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definition was created by AB 1266 (Martinez), Chapter
357, Statutes of 1993. Both bills were designed to
create a statutory definition rather than having
conflicting case law.
The letter in the Journal indicates that a folding knife
is "a dirk or dagger" for purposes of Penal Code Section
12020 only if the blade of such knife is exposed and
locked into position.
b) AB 78 . This bill attempts to codify the letter in the
Journal without touching switchblade knife regulation or
otherwise doing major damage to the law. The author is
doing this at the request of Buck Knives.
5) When are Dirks and Daggers Illegally Carried Concealed ?
a) Case Law . Under current Section 12020, dirks or daggers
are considered to be illegally carried only if carried
concealed upon the person. Case law suggests that this is
under the person's clothes.
b) AB 78 . At the request of the Buck Knives, AB 798 also
provides that a dirk or dagger is not illegally carried
concealed if it is carried in a backpack, tool belt, tackle
box, briefcase, purse, or similar container that is used to
carry or transport possessions. This appears to be
consistent with current case law.
6) Forensic Laboratories .
a) Background . Under a number of code sections, lab
personnel have a clear exemption to allow them to possess
contraband incident to their official duties. Penal Code
Section 12020 does not have such a clear exemption.
b) AB 78 . AB 78 explicitly allows possession of any weapon,
device, or ammunition banned by Section 12020 by a forensic
laboratory or any authorized agent or employee thereof in
the course and scope of his or her authorized activities.
7) Machine-Guns . At the request of Legislative Counsel, the bill
makes cosmetic code maintenance changes to the machine-gun
exemption statute.
ARGUMENTS IN SUPPORT AND OPPOSITION . The California Attorneys for
Criminal Justice support the proposed amendments to Section 22
relating to exemptions for possession and transportation of
weapons as the provision will increase public safety by
encouraging the removal of firearms from communities. CACJ does
not believe, however, that expanding criminal liability for
possession of certain knives will deter criminal conduct, but only
further clog the courts and penal institutions.
REGISTERED SUPPORT/OPPOSITION :
AB 78
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Support
California Attorneys for Criminal Justice (partial support)
California Rifle and Pistol Association, Inc.
Doris Tate Crime Victims Bureau
Opposition
California Attorneys for Criminal Justice (partial opposition)
Analysis prepared by : Judith M. Garvey / apubs / (916) 445-3268