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