BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB 78  
                                                         Page 1

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. 








                                                          AB 78  
                                                         Page 2

  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  







                                                          AB 78  
                                                         Page 3

   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  







                                                          AB 78  
                                                         Page 4

            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  







                                                          AB 78  
                                                         Page 5

       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  







                                                          AB 78  
                                                         Page 6

       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  
                                                         Page 7

  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