BILL NUMBER: AB 477 CHAPTERED
BILL TEXT
CHAPTER 260
FILED WITH SECRETARY OF STATE AUGUST 11, 1997
APPROVED BY GOVERNOR AUGUST 9, 1997
PASSED THE ASSEMBLY JULY 24, 1997
PASSED THE SENATE JULY 18, 1997
AMENDED IN SENATE MAY 27, 1997
AMENDED IN ASSEMBLY APRIL 21, 1997
AMENDED IN ASSEMBLY APRIL 3, 1997
INTRODUCED BY Assembly Member Leonard
FEBRUARY 24, 1997
An act to amend Section 12101 of the Health and Safety Code, and
to amend Sections 453, 454, and 12302 of the Penal Code, relating to
explosives.
LEGISLATIVE COUNSEL'S DIGEST
AB 477, Leonard. Explosives: incendiary device: permits.
(1) Under existing law, a person is required to apply for and
obtain a permit to manufacture, sell, receive, store, possess,
transport, or use explosives. Existing law prohibits the issuance of
this permit to any person prohibited from owning or having in his or
her possession or control any firearm and any person convicted of
specified offenses.
This bill would require the issuing authority, for purposes of
determining whether a person meets the prescribed criteria for denial
of a permit, to obtain 2 sets of fingerprints from all persons
applying for a permit pursuant to these provisions and to submit the
fingerprints to the Department of Justice. The bill also would
require the department to make inquiries regarding the criminal
background of applicants for a permit. By imposing new duties on
local governmental agencies, this bill would impose a state-mandated
local program.
(2) Existing law makes it a misdemeanor or a felony for any person
to possess any flammable, explosive, or combustible material or
substance, or any device in an arrangement or preparation, with
intent to willfully and maliciously use this material, substance, or
device to set fire to or burn any structure, forest land, or
property. Existing law also makes it a felony to possess,
manufacture, or dispose of a firebomb.
This bill would recast these provisions by deleting the provisions
related to a "firebomb" and incorporating "incendiary device," as
defined. By expanding the scope of an existing crime, this bill
would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12101 of the Health and Safety Code is amended
to read:
12101. (a) No person shall do any one of the following without
first having made application for and received a permit in accordance
with this section:
(1) Manufacture explosives.
(2) Sell, furnish, or give away explosives.
(3) Receive, store, or possess explosives.
(4) Transport explosives.
(5) Use explosives.
(6) Operate a terminal for handling explosives.
(7) Park or leave standing any vehicle carrying explosives, except
when parked or left standing in or at a safe stopping place
designated as such by the Department of the California Highway Patrol
under Division 14 (commencing with Section 31600) of the Vehicle
Code.
(b) Application for a permit shall be made to the appropriate
issuing authority.
(c) (1) A permit shall be obtained from the issuing authority
having the responsibility in the area where the activity, as
specified in subdivision (a), is to be conducted.
(2) If the person holding a valid permit for the use or storage of
explosives desires to purchase or receive explosives in a
jurisdiction other than that of intended use or storage, the person
shall first present the permit to the issuing authority in the
jurisdiction of purchase or receipt for endorsement. The issuing
authority may include any reasonable restrictions or conditions which
the authority finds necessary for the prevention of fire and
explosion, the preservation of life, safety, or the control and
security of explosives within the authority's jurisdiction. If, for
any reason, the issuing authority refuses to endorse the permit
previously issued in the area of intended use or storage, the
authority shall immediately notify both the issuing authority who
issued the permit and the Department of Justice of the fact of the
refusal and the reasons for the refusal.
(3) Every person who sells, gives away, delivers, or otherwise
disposes of explosives to another person shall first be satisfied
that the person receiving the explosives has a permit valid for that
purpose. When the permit to receive explosives indicates that the
intended storage or use of the explosives is other than in that area
in which the permittee receives the explosives, the person who sells,
gives away, delivers, or otherwise disposes of the explosives shall
insure that the permit has been properly endorsed by a local issuing
authority and, further, shall immediately send a copy of the record
of sale to the issuing authority who originally issued the permit in
the area of intended storage or use. The issuing authority in the
area in which the explosives are received or sold shall not issue a
permit for the possession, use, or storage of explosives in an area
not within the authority's jurisdiction.
(d) In the event any person desires to receive explosives for use
in an area outside of this state, a permit to receive the explosives
shall be obtained from the State Fire Marshal.
(e) A permit may include any restrictions or conditions which the
issuing authority finds necessary for the prevention of fire and
explosion, the preservation of life, safety, or the control and
security of explosives.
(f) A permit shall remain valid only until the time when the act
or acts authorized by the permit are performed, but in no event shall
the permit remain valid for a period longer than one year from the
date of issuance of the permit.
(g) Any valid permit which authorizes the performance of any act
shall not constitute authorization for the performance of any act not
stipulated in the permit.
(h) An issuing authority shall not issue a permit authorizing the
transportation of explosives pursuant to this section if the display
of placards for that transportation is required by Section 27903 of
the Vehicle Code, unless the driver possesses a license for the
transportation of hazardous materials issued pursuant to Division
14.1 (commencing with Section 32000) of the Vehicle Code, or the
explosives are a hazardous waste or extremely hazardous waste, as
defined in Sections 25117 and 25115 of the Health and Safety Code,
and the transporter is currently registered as a hazardous waste
hauler pursuant to Section 25163 of the Health and Safety Code.
(i) An issuing authority shall not issue a permit pursuant to this
section authorizing the handling or storage of class A or B
explosives in a building, unless the building has caution placards
which meet the standards established pursuant to subdivision (g) of
Section 12081.
(j) (1) A permit shall not be issued to a person who meets any of
the following criteria:
(A) He or she has been convicted of a felony.
(B) He or she is addicted to a narcotic drug.
(C) He or she is in a class prohibited by Section 8100 or 8103 of
the Welfare and Institutions Code or Section 12021 or 12021.1 of the
Penal Code.
(2) For purposes of determining whether a person meets any of the
criteria set forth in this subdivision, the issuing authority shall
obtain two sets of fingerprints on prescribed cards from all persons
applying for a permit under this section and shall submit these cards
to the Department of Justice. The Department of Justice shall
utilize the fingerprint cards to make inquiries both within this
state and to the Federal Bureau of Investigation regarding the
criminal history of the applicant identified on the fingerprint card.
This paragraph does not apply to any person possessing a current
certificate of eligibility issued pursuant to paragraph (4) of
subdivision (a) of Section 12071.
(k) An issuing authority shall inquire with the Department of
Justice for the purposes of determining whether a person who is
applying for a permit meets any of the criteria specified in
subdivision (j). The Department of Justice shall determine whether a
person who is applying for a permit meets any of the criteria
specified in subdivision (j) and shall either grant or deny clearance
for a permit to be issued pursuant to the determination. The
Department of Justice shall not disclose the contents of a person's
records to any person who is not authorized to receive the
information in order to ensure confidentiality.
SEC. 2. Section 453 of the Penal Code is amended to read:
453. (a) Every person who possesses, manufactures, or disposes of
any flammable, or combustible material or substance, or any
incendiary device in an arrangement or preparation, with intent to
willfully and maliciously use this material, substance, or device to
set fire to or burn any structure, forest land, or property, shall be
punished by imprisonment in the state prison, or in a county jail,
not exceeding one year.
(b) For the purposes of this section:
(1) "Disposes of" means to give, give away, loan, offer, offer for
sale, sell, or transfer.
(2) "Incendiary device" means a device that is constructed or
designed to start an incendiary fire by remote, delayed, or instant
means, but no device commercially manufactured primarily for the
purpose of illumination shall be deemed to be an incendiary device
for the purposes of this section.
(3) "Incendiary fire" means a fire that is deliberately ignited
under circumstances in which a person knows that the fire should not
be ignited.
(c) Subdivision (a) does not prohibit the authorized use or
possession of any material, substance or device described therein by
a member of the armed forces of the United States or by firemen,
police officers, peace officers, or law enforcement officers
authorized by the properly constituted authorities; nor does that
subdivision prohibit the use or possession of any material, substance
or device described therein when used solely for scientific research
or educational purposes, or for disposal of brush under permit as
provided for in Section 4494 of the Public Resources Code, or for any
other lawful burning. Subdivision (a) does not prohibit the
manufacture or disposal of an incendiary device for the parties or
purposes described in this subdivision.
SEC. 3. Section 454 of the Penal Code is amended to read:
454. (a) Every person who violates Section 451 or 452 during and
within an area of any of the following, when proclaimed by the
Governor, shall be punished by imprisonment in the state prison, as
specified in subdivision (b):
(1) A state of insurrection pursuant to Section 143 of the
Military and Veterans Code.
(2) A state of emergency pursuant to Section 8625 of the
Government Code.
(b) Any person who is described in subdivision (a) and who
violates subdivision (a), (b), or (c) of Section 451 shall be
punished by imprisonment in the state prison for five, seven, or nine
years. All other persons who are described in subdivision (a) shall
be punished by imprisonment in the state prison for three, five, or
seven years.
(c) Probation shall not be granted to any person who is convicted
of violating this section, except in unusual cases where the interest
of justice would best be served.
SEC. 4. Section 12302 of the Penal Code is amended to read:
12302. Nothing in this chapter shall prohibit the sale to,
purchase by, or possession, transportation, storage, or use of,
destructive devices or explosives by:
(a) Any peace officer listed in Section 830.1 or 830.2, or any
peace officer in the Department of Justice authorized by the Attorney
General, while on duty and acting within the scope and course of his
or her employment.
(b) 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.
Nothing in this chapter prohibits the sale to, or the purchase,
possession, transportation, storage, or use by any person who is a
regularly employed and paid officer, employee, or member of a fire
department or fire protection or firefighting agency of the federal
government, the State of California, a city, county, city and county,
district, or other public or municipal corporation or political
subdivision of this state, while on duty and acting within the scope
and course of his or her employment, of any equipment used by that
department or agency in the course of fire suppression.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.