BILL ANALYSIS                                                                                                                                                                                                    







             SENATE COMMITTEE ON Public Safety
                   Senator John Vasconcellos, Chair   A
                      1999-2000 Regular Session       B

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AB 491 (Scott)                                        
As Amended June 15, 1999
Hearing date:  June 22, 1999
Penal Code
JM:br



       CONCEALED HANDGUNS/LOADED FIREARMS - PENALTIES;

 FIREARM POSSESSION BY PERSONS SUBJECT TO PSYCHIATRIC HOLDS

                               

                          HISTORY


Sources:  California Police Chiefs' Association (Possession  
          of firearm with ready ammunition)
          Attorney General (Alleged mental incompetence and  
firearm possession)

Prior Legislation: AB 304 (Scott) - Chapter 459, Statutes  
of 1997
             AB 632 (Katz) - Chapter 787, Statutes of 1976

Support:  California Police Chiefs' Association; City of  
          Los Angeles; City of West Hollywood; Handgun  
          Control; Legal Community Against Violence; Public  
          Health Institute; Trauma Foundation; Women  
          Against Gun Violence

Opposition:California Public Defenders Association;  




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          California Rifle and Pistol Association;  
          California Shooting Sports Association; Gun  
          Owners of California, Inc.; National Rifle  
          Association

Assembly Floor Vote:  Ayes  43 - Noes  27


                                   KEY ISSUES
  
SHOULD ANY PERSON WHO POSSESSES A CONCEALED HANDGUN IN PUBLIC WITH READY  
AMMUNITION BE GUILTY OF AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS  
UNDER CURRENT LAW, IF HE OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM?

SHOULD ANY PERSON WHO OPENLY CARRIES A LOADED HANDGUN IN PUBLIC BE GUILTY OF  
AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS UNDER CURRENT LAW, IF HE  
OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM?

SHOULD THE STATE BEAR THE BURDEN OF PROOF IN A HEARING TO DETERMINE WHETHER A  
PERSON WHO HAS BEEN SUBJECTED TO A 72- HOUR HOLD PURSUANT TO WELFARE AND  
INSTITUTIONS CODE SECTION 5150 CAN SAFELY POSSESS A FIREARM?


                          PURPOSE

The purpose of this bill is to allow a felony conviction  
where a person carries in public a loaded handgun, or a  
handgun for which he or she has ready ammunition, and where  
he or she is not the registered owner of the firearm.

The purpose of this bill is to allow a felony penalty  
regardless of whether or not the handgun is concealed and  
regardless of whether or not the possessor is otherwise the  
lawful owner or borrower of the handgun.

The purpose of this bill is to require the Department of  
Justice to bear the burden of proof in a hearing to  
determine whether a person held for 72-hours observation  
and subsequently released without further commitment  
pursuant to Welfare and Institutions Code section 5150 can  




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safely possess a firearm.

     EXITING LAW AND THIS BILL - CARRYING GUNS IN PUBLIC
  
1.  Existing Law as to Carrying Concealed Handguns  

  a.   Carrying a Concealed Firearm, Defined:

      i.  Every person who carries concealed within any  
       vehicle which is under his or her control or  
       direction any pistol, revolver, or other firearm  
       capable of being concealed upon the person; or,

      ii     Causes to be concealed within any vehicle in  
       which the person is an occupant any pistol,  
       revolver, or other firearm capable of being  
       concealed upon the person; or

      iii. Carries concealed upon his or her person any  
       pistol, revolver, or other firearm capable of being  
       concealed upon the person, is guilty of carrying a  
       concealed handgun.  (Pen. Code  12025, subd. (a).)

A number of exceptions and limitations are contained in law  
pertaining to this crime, including methods to lawfully  
carry firearms in a vehicle, in a home or business, etc..   
(Pen. Code  12025, 12025.5, 12026, 12026.2, 12027, and  
12050.)

  b.   Punishment for Carrying a Concealed Firearm

     i  Violations of carrying a concealable firearm  
      concealed or in a vehicle are generally punished as a  
      misdemeanor punishable by up to one year in a county  
      jail.

      ii  Violations by a person who has been convicted of  
       a crime against a person or property, or of a  
       narcotics or dangerous drug violation, are  
       punishable as either a misdemeanor (up to one year  




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       in jail) or a felony.

      iii Specified violations are punishable as a felony:   
       where the person has previously been convicted of  
       any felony, or of any crime made punishable by the  
       Dangerous Weapons' Control Law; where the firearm is  
       stolen and the person knew or had reasonable cause  
       to believe that it was stolen; where the person is  
       an active participant in a criminal street gang; and  
       where the person is not in lawful possession of the  
       firearm, as defined, or the person is within a class  
       of persons prohibited from possessing or acquiring a  
       firearm.  (Penal Code  12025, subd. (b).)

2.   Existing Law as to Openly Carrying a Loaded Firearm in  
Public  :

A person is guilty of carrying a loaded firearm when he or  
she carries a loaded firearm on his or her person or in a  
vehicle while in any public place or on any public street  
in an incorporated city or in any public place or on any  
public street in a prohibited area of unincorporated  
territory.  (Pen. Code  12031, subd. (a)(1).)  (A number  
of exceptions and limitations are contained in law  
pertaining to this crime.)

Violations are punishable as in Penal Code section 12025:   
generally as a misdemeanor (up to one year in jail); a  
felony in specified circumstances; and as a misdemeanor (up  

to one year in jail)/felony where the person has been  
convicted of a crime against a person or property or of  
narcotics or dangerous drug violations.  (Pen. Code   
12031, subd. (a)(2).)

3.  Existing Law - Definition of a Loaded Firearm  

A person is guilty of carrying a loaded firearm under  
existing law when he or she carries a loaded firearm on his  
or her person or in a vehicle while in any public place or  




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on any public street in an incorporated city or in any  
public place or on any public street in a prohibited area  
of unincorporated territory.  (Pen. Code  12031(a)(1).)

A number of exceptions and limitations are contained in law  
pertaining to this crime.

Violations are punishable as in Penal Code section 12025:   
generally as a misdemeanor (up to one year in jail); a  
felony in specified circumstances; and as a misdemeanor (up  
to one year in jail)/felony where the person has been  
convicted of a crime against a person or property or of  
narcotics or dangerous drug violations.  (Pen. Code  12031,  
subd. (a)(2).)

4.  This Bill - New Alternate Felony/Misdemeanor of Carrying  
  a Concealed Handgun with Ready Ammunition

   This bill creates a new alternate felony/misdemeanor of  
  carrying a concealable firearm (handgun), punishable by 16  
  months, two or three years in state prison, or by up to  
  one year in the county jail and/or a fine up to $1,000,  
  where the following are proved:

   a)   A person conceals and carries, on his or her  
     person, or within any vehicle, a concealable firearm  
     (handgun);

   b)   The gun is loaded, or ammunition for the handgun is  
     in the person's immediate possession or is readily  
     accessible; and

   b)   The person is not listed as the registered owner or  
     the borrower of the handgun on Department of Justice  
     (DOJ) records pursuant to Penal Code section 11106.

5.   This Bill - New Alternate Felony Misdemeanor of Openly  
Carrying a Loaded Firearm

  This bill increases the penalty for possession of a loaded  




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firearm to an alternate misdemeanor/felony where the  
firearm is a pistol, revolver, or other firearm capable of  
being concealed upon the person and the possessor is not  
the registered owner.
  
    EXISTING LAW AS TO PROHIBITION ON POSSESSION OF A FIREARM  
  BECAUSE OF MENTAL HEALTH TREATMENT OR MENTAL CONDITION

Existing law  , the Lanterman-Petris-Short Act (LPS),  
provides that persons, who, by reason of a mental disorder,  
are dangerous to others or to themselves, or who are  
gravely disabled" may be involuntarily held for 72 hours,  
and then treated for 14 additional days, and 180 days  
following a judicial hearing.  (Welf. & Inst. Code  5000  
et seq.)

  Existing law  provides that a person who has been taken into  
custody for a 72 hour LPS hold may not own a firearm for five  
years unless the person proves by a preponderance in a  
judicial hearing that he or she may safely possess a firearm.   
(Welf. & Inst. Code  8130, subd. (f).)

  Existing law  provides that a person who has been certified  
for intensive treatment under the LPS law may not own a  
firearm for five years unless the person proves by  
preponderance in a judicial hearing that he or she may  
safely possess a firearm.  (Welf. & Inst. Code  8130,  
subd. (f).)

  Existing law  provides that a person found to be a mentally  
disordered offender or a mentally disordered sex offender,  
a person who have been placed under a conservatorship, a  
person who has been found to be a danger to self or others  
because of a mental disorder, may not possess a firearm  
unless a court certifies that the person may possess a  
firearm without endangering others.  (Welf. & Inst. Code   
8130, subd. (a)(1).)
  
Existing law  provides that any person who has been found  
guilty of specified serious offenses by reason of insanity  




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may not possess a firearm.  (Welf. & Inst. Code  8130,  
subd. (b).)

  Existing law  provides that any person who has been found  
guilty of lesser offenses by reason of insanity may not  
possess a firearm until sanity has been restored.  (Welf. &  
Inst. Code  8130, subd. (c).)
  
This bill  would provide that a person previously held for a  
72 hour "5150" - and not held for further treatment beyond  
the 72-hours - may request a hearing for relief from the  
five-year firearm possession prohibition at which the state  
would bear the burden of proving that the person would not  
safely possess a firearm.  
  
                          COMMENTS

1.  Need for this Bill  

  According to the author:

     Existing law (Pen. Code  12020) provides that  
     concealed carrying of pen knives, brass knuckles,  
     dirks, daggers, zip guns and certain other devices
     can be prosecuted as a felony.  However, the illegal  
     carrying of a concealed handgun can only be  
     prosecuted as a misdemeanor [absent additional  
     elements].

     The Policy Council on Violence Prevention  
     convened by the former Attorney General Lungren  
     concluded that "carrying a concealed, loaded  
     firearm without a permit is a serious crime and  
     should be treated as such.  Therefore, the  
     council recommended that California enact  
     legislation to increase the penalty to a  
     'misdemeanor or felony" at the discretion of the  
     district attorney."

     AB 491 would allow district attorneys and judges  




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     to charge or convict individuals who illegally  
     conceal unregistered firearms with either a  
     misdemeanor or felony.  The only individuals  
     subject to the wobbler will be those carrying a  
     gun and ammunition if they have not undergone a  
     background check to acquire the gun.

     Prior to the 1997 decision of the Sacramento  
     County Superior Court in Dayacamos v. Department  
     of Justice (Sacramento No. 96 CS 10471) Welfare  
     and Institutions Code section 8103, subdivision  
     (f) prohibited persons placed in a mental health  
     facility from owning or possessing firearms for a  
     period of five years.  However the Sacramento  
     Superior Court in Dayacamos invalidated section  
     8103, subdivision (f) as a violation of  
     procedural due process under both the federal and  
     state constitutions.  Specifically, the court  
     emphasized that the statute did not provide for  
     any meaningful notice or hearing prior to the  
     deprivation of the ability to possess, own,  
     control, receive or purchase a firearm.   
     Furthermore, the court found that the statutory  
     burden of proof placed on the person subject to  
     the firearm disqualification also violated due  
     process.  The court then permanently enjoined the  
     Attorney General from the receipt or processing  
     of information regarding persons placed on  
     72-hour holds.  (Welf. and Inst. Code   
     5150-5152.)

     This bill would address the constitutional  
     infirmities cited by court in Dayacamos with  
     respect to Welfare and Institutions Code section  
     8103, subdivision (f).  It would expressly  
     provide person discharged from a mental health  
     facility following a 72 hour hold to be informed  
     of their right to a judicial hearing concerning  
     their firearms legal disability under section  
     8103, subdivision (f).  The proposal would also  




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     place the burden of proof upon the People to show  
     by preponderance of the evidence that the person  
     will not be likely to use firearms in a safe and  
     lawful manner.

     This bill would satisfy the constitutional  
     requirement outline by the Dayacamos court case while  
     at the same time ensuring the safety of the public.

2.   Increased Penalties Proposed in This Bill for Loaded  
  Handguns - Concealed and Openly Carried
  
  a)   Concealed Handguns  

  This bill proposes to increase the penalty from a  
  misdemeanor to an alternate felony/misdemeanor for a  
  person who carries a loaded, concealed handgun under  
  Penal Code section 12025 where he or she is not the  
  registered owner of the gun.  (Other elements, most  
  notably a prior felony conviction, would make such  
  conduct a felony under current law.)

  Under current law - Penal Code section 12025 - a person  
  may receive no more than a misdemeanor for carrying a  
  concealed, loaded handgun where he or she is in "lawful  
  possession"<1> of the firearm, not otherwise be  
  prohibited from possessing the firearm, not otherwise  
  violating a law or committing a crime, not a member of a  
  street gang, and not otherwise subject to a felony  
  -----------------------------
<1> Penal Code sections 12025, subdivision (f), and 12031,  
subd. (a)(2)(G), define lawful possession thus:  "For  
purposes of this section, 'lawful possession' means that  
the who has possession or custody of the firearm either  
owns the firearm or has the permission of the owner or a  
person who otherwise has apparent authority to possess or  
have custody of the firearm.  A person who takes a firearm  
without the permission of the owner or without the  
permission of a person who has custody of the firearm does  
not have lawful possession of the firearm."




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  penalty.

  b)   Loaded, Openly Carried Handguns  

  This bill proposes to increase the penalty from a  
  misdemeanor to an alternate felony/misdemeanor for a  
  person who openly carries a loaded handgun under Penal  
  Code section 12031 where he or she is not the registered  
  owner of the gun.  (Other elements, most notably a prior  
  felony conviction, would make such conduct a felony under  
  current law.)

  Under current law - Penal Code section 12031 - a person  
  may receive no more than a misdemeanor for carrying a  
  loaded handgun where he or she is in "lawful  
  possession"<2> of the firearm, not otherwise be  
  prohibited from possessing the firearm, not otherwise  
  violating a law or committing a crime, not a member of a  
  street gang, and not otherwise subject to a felony  
  penalty.

  Thus, the critical issue raised by this bill is whether  
  or not handgun registration should be the determining  
  factor in the penalty for possession of a concealed  
  handgun (apart from prior felony convictions etc, that  
  render possession of any firearm a felony).   
  Determination of this issue likely turns on what is  
  accomplished by gun registration and the process  
  necessary to registers a gun.
  -----------------------------
<2> Penal Code sections 12025, subdivision (f), and 12031,  
subd. (a)(2)(G), define lawful possession thus:  "For  
purposes of this section, 'lawful possession' means that  
the who has possession or custody of the firearm either  
owns the firearm or has the permission of the owner or a  
person who otherwise has apparent authority to possess or  
have custody of the firearm.  A person who takes a firearm  
without the permission of the owner or without the  
permission of a person who has custody of the firearm does  
not have lawful possession of the firearm."




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3.  Possible Ambiguity in Section 12025 Created by Definition  
  in This Bill of a Loaded Firearm 

  a)  The Dangerous Weapons' Control Law Contains at Least  
     Two Definitions of a "Loaded" Firearm  

  Penal Code section 12031, subdivision (g), states:

       A firearm shall be deemed to be loaded for the  
       purposes of this section when there is an  
       unexpended cartridge or shell, consisting of a  
       case which holds a charge of powder and a  
       bullet or shot, in, or attached in any manner  
       to, the firearm, including, but not limited  
       to, in the firing chamber, magazine, or clip  
       thereof attached to the firearm; except that a  
       muzzle-loader firearm shall be deemed to be  
       loaded when it is capped or primed and has a  
       powder charge and ball or shot in the barrel  
       or cylinder.  Penal Code section 12031  
       prohibits the carrying of any loaded firearm.

  Penal Code section 12035, which contains penalties for  
  the "criminal storage" of a loaded firearm, provides:

  "'Loaded firearm' has the same meaning as set forth in  
  subdivision (g) of Section 12031."  Penal Code section  
  12023 makes it a crime to carry a loaded firearm with the  
  intent to commit a felony.

  Penal Code section 12001, subdivision (j). provides that  
  for purposes of section 12023, a firearm shall be deemed  
  to be "loaded" whenever both the firearm and the  
  unexpended ammunition capable of being discharged from  
  the firearm are in the immediate possession of the same  
  person.





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  b)  This Bill May Include Only One Definition of a Loaded  
     Firearm for Purposes of Section 12025  

  The amendments to section 12031 in this bill most closely  
  follow the definition of a loaded firearm set out in  
  Penal Code section 12001, subdivision (j).  Arguably,  
  this bill covers only defendants who possess handguns  
  with readily available ammunition, not those who possess  
  a weapon that is loaded under the definition of Penal  
  Code section 12001, subdivision (g).  This argument would  
  be made under the rule of statutory construction,  
  "expressio unius est exclusio alterius" - the expression  
  of one thing is the exclusion of the other.  That is,  
  because this bill specifically employs the definition of  
  a loaded firearm in section 12001, subdivision (j), the  
  definition in section 12001, subdivision (g), is  
  excluded.


   c)    Possible Claims that only Misdemeanor may be  
     Charged for Possession of Concealed and Actually  
     Loaded Handgun  

  A rule of statutory construction holds that where a  
  person can be charged under a general criminal law and a  
  law that more specifically describes the defendant's  
  conduct, the more specific law shall apply.  This is  
  particularly likely where the laws governing a subject  
  are comprehensive and inter-related.  (People v. De La  
  Cruz (193) 20 Cal.App.4th 955.)  The language of this  
  bill may be interpreted to only impose a felony for  
  possession of a concealed handgun where the possessor of  
  the gun has ready ammunition, not where the gun is  
  actually loaded.

4.  Registration of Firearm as Defense to Felony, Possible  
  Equal Protection and Due Process Arguments
  
This bill provides that possession of a loaded handgun is a  
misdemeanor - in the absence of other elements such as  




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prior felony conviction, stolen gun etc. - where the  
possessor of the handgun is the registered owner.  This  
raises issues as to how a person establishes this defense.   
It appears from discussions among interested parties that  
the DOJ computer database includes registrations only back  
to 1979.  Earlier registrations are on microfiche.  Where  
the owner of a firearm is arrested for being in possession  
of a loaded handgun that was registered prior to 1979, the  
information will not be in the computer system.  Thus, the  
arresting officer will likely arrest the person for felony  
possession of a handgun.  The arrested person will then  
likely be charged with a felony until he or she can  
establish that he or she is the registered owner of the  
handgun.  This may take some time and effort.

It may be argued that the bill denies equal protection and  
due process under the 14th Amendment to the United States  
Constitution for persons who registered handguns prior to  
1979.  This is the argument of the NRA and the California  
Rifle and Pistol Association.  A felony conviction in such  
circumstances would turn on the vagaries of the  
registration records.

In contrast, the Attorney General notes that any person who  
carries a concealed handgun has necessarily committed a  
crime - the existing misdemeanor - even where he or she is  
the lawful possessor or registered owner of the gun.   
Essentially, the Attorney General argues that it is not  
unreasonable to place the burden of registration on a  
person who intentionally commits a crime.  Where the  
handgun is registered, the defendant will avoid a felony.

5.  Arguments in Support of the New Wobbler  

The California Department of Justice argues:

  AB 491 addresses a longstanding anomaly in the law  
  whereby an individual found in possession of a dirk  
  dagger or club can be found guilty of a felony while an  
  individual carrying a loaded and concealed handgun may be  




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  subjected to a misdemeanor.  AB 491 provides individuals  
  who may choose to violate Penal Code section 12025 with  
  relief from the felony should they demonstrate that they  
  are the lawful owner of the firearm.  This can be easily  
  accomplished by merely voluntarily registering the  
  handgun prior to choosing to violate section 12025.   
  Individuals unlawfully possessing handguns will not seek  
  this relief.

6.  Arguments in Opposition - New Concealed Handgun/Ready  
  Ammunition Wobbler  

The National Rifle Association argues:

  Assemblyman Scott proposes that the penalty for  
  illegally carrying a concealed weapon be increased  
  to a misdemeanor/felony (wobbler) if the firearm is  
  not registered in the Department of Justice (DOJ)  
  database.  In spite of legislative direction in SB  
  1308 (Peace) in 1994, online DOJ handgun  
  registration information is only available to law  
  enforcement from 1979 on.  Without this online  
  registration information, unwarranted felony arrests  
  would result.

  A similar bill was carried by then Assemblyman  
  Burton (AB 2469) in 1994.  He dropped the penalty  
  increase linkage with registration status when it  
  became clear that DOJ's online capabilities were  
  deficient.

  It is unclear why DOJ has been unwilling or unable  
  to bring their records up to date.  However it is  
  clear that there can be no "quick fix."  The policy  
  contained in AB 491 could not be implemented fairly  
  until DOJ's handgun registration databases are fully  
  accessible to patrol officers.

The California Rifle and Pistol Association argues:





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   The California Rifle and Pistol Association is opposed  
   to AB 491 which would make the first offense of carrying  
   a concealed handgun without a permit an alternate  
   felony/misdemeanor, instead of the current misdemeanor  
   where the person carrying the firearm is in lawful  
   possession of the gun, although not the registered  
   owner.

   This provision was considered by the Legislature in  
   recent years but not adopted.  Instead, the Legislature  
   passed AB 632 (Katz) in 1996 which added Penal Code  
   section 12025, subdivision (b)(4), that took effect on  
   January 1, 1997.  AB 632 addressed the primary problem  
   of persons who carry . . . stolen handguns.  Most gang  
   members and other criminals carry stolen handguns.  They  
   are the real threat to society, not the person who  
   carries his or her own handgun concealed because they  
   are afraid of death or great bodily injury at the hands  
   of another but could not obtain a permit to carry a  
   handgun concealed because their local issuing agency has  
   a policy of not granting permits, regardless of need.

     AB 632 has not been in effect long enough to assess  
     its effectiveness.  In the meantime, it would be  
     inappropriate to increase penalties as proposed in AB  
     491.  This is especially true since there is no  
     documented problem of otherwise lawful individuals  
     carrying handguns without permits . . . that would  
     justify the enactment of this bill.


SHOULD ONE'S PENALTY FOR CARRYING A LOADED, CONCEALED  
HANDGUN BE LIMITED TO A MISDEMEANOR, NOT AN ALTERNATE  
FELONY/MISDEMEANOR, WHERE HE OR SHE HAS REGISTERED THE GUN?


DOES THE DEPARTMENT OF JUSTICE DATABASE ACCURATELY REFLECT  
THOSE WHO HAVE REGISTERED HANDGUNS, I.E., EITHER PURCHASED  
A HANDGUN SINCE PURCHASE INFORMATION HAS BEEN MAINTAINED -  
AND PRIVATE TRANSACTIONS HAVE BEEN REQUIRED TO BE MADE  




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THROUGH A DEALER - OR OTHERWISE HAVE "REGISTERED" A HANDGUN  
WITH THE DEPARTMENT?


HAS PRE-1979 DATA BEEN MAINTAINED IN THE CURRENT ACCESSIBLE  
DEPARTMENT OF JUSTICE SYSTEM?


SHOULD PERSONS IN LAWFUL POSSESSION OF HANDGUNS BE TREATED  
DIFFERENTLY BASED ON WHETHER OR NOT THE FIREARM WAS  
"REGISTERED" PRIOR TO 1979?


SHOULD PERSONS IN LAWFUL POSSESSION OF A HANDGUN BY VIRTUE  
OF PERMISSION OF THE OWNER BE EXCLUDED FROM THE LIMITED  
MISDEMEANOR PENALTY ONLY, AS UNDER CURRENT LAW?

7.   Three-Strikes Impact of This Bill


























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  This bill would add a felony penalty option to the existing  
misdemeanor penalty pertaining to possession of a concealed  
firearm.  However, any person subject to this new felony  
could not have had any felony convictions in the  
past--serious, violent, or not--since the new felonies  
proposed by this bill would only apply to persons without  
such a record.  Thus, the new felony penalty options  
proposed by this bill are unaffected by the "three-strikes"  
law.  (Any person who has a prior felony conviction is  
currently subject to a straight felony penalty in sections  
12025 and 12031.)

8.   The Dayacamos Decision  

The Dayacamos case, a decision of the Sacramento County  
Superior Court, concerned the 5-year prohibition on  
possession of a firearm by a person who has been subject to  
a 72-hour psychiatric hold under section 5150 of the  
Welfare and Institutions Code, the most widely known  
provision of the Lanterman-Petris-Short (LPS) Act.  Welfare  
and Institutions Code section 8130, subdivision (f), allows  
a person who had been held pursuant to a 72-hour 5150 hold  
to obtain a hearing to obtain a judicial order relieving  
him or her of the firearm possession bar.  (Section 8103,  
subdivision (g) concerns an equivalent bar for those who  
have been held for additional 14-day periods beyond the  
72-hour hold.)

The court in Dayacamos held that section 8130 denied due  
process in barring former LPS detainees (those subject to  
72-hour holds) from possessing a firearm without a  
"meaningful hearing" prior to the imposition of the  
prohibition.  In particular, the court found that requiring  
a former LPS detainee to carry the burden of demonstrating  
that he or she can safely own a firearm denied due process.  
 The court did not attempt to limit section 8103,  
subdivision (f), to constitutionally acceptable  
applications, but found the entire subdivision to be void.   
The court further ordered the Department of Justice to  











                                              AB 491 (Scott)
                                                      Page 18


"purge its databases or other records of all commitments  
that occurred under Welfare and Institutions Code section  
5150."  (Order - Writ of Mandate and Prohibition, Sac. No.  
96 CS 01471, p. 3)

9.  Proposed Amendment to Clarify Dayacamos Burden of Proof  
Language
  
The bill as currently drafted provides that the state bears  
the burden of proving that a person who has been subject to  
a 72-hour "5150" hold could not safely possess a firearm.   
The language describing the findings the court must make  
after the hearing appears to be somewhat awkward.  The bill  
currently reads:  "If the court fails to find that the  
people have met their burden . . . the court shall order  
that the person may own . . . firearms."  (Sic.)  It is  
suggested that the provision would be better phrased:  "If  
the court finds . . . that the People have not met their  
burden . . . the court shall order that the person may own  
. . . firearms."

WILL THE 5-YEAR PROHIBITION ON FIREARM POSSESSION FOR A  
PERSON WHO HAS BEEN SUBJECTED TO A 72-HOUR PSYCHIATRIC HOLD  
PURSUANT TO WELFARE & INSTITUTIONS CODE SECTION 5150 BE  
MADE CONSTITUTIONAL WHERE THE HELD PERSON CAN DEMAND A  
HEARING TO DETERMINE WHETHER HE OR SHE CAN SAFELY POSSESS A  
FIREARM AND WHERE THE STATE HAS THE BURDEN OF PROOF IN THE  
HEARING?

SHOULD SUCH PROVISIONS BE ENACTED?

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