BILL NUMBER: AB 814 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Krekorian
FEBRUARY 26, 2009
An act to amend Section 12021 of the Penal Code, relating to
firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 814, as introduced, Krekorian. Firearms: surrender.
Existing law makes it an offense for a person convicted of a
felony, who is addicted to narcotics, or, for a period of 10 years,
for a person who is convicted of specified misdemeanors, to own,
purchase, receive, have in their possession or under their custody or
control any firearm, as specified. Existing law provides for a
notice to a defendant of these provisions, as specified.
This bill would establish a procedure for defendants who own, have
possession, or custody or control of firearms, to sell the firearm
to a firearms dealer or relinquish the firearm to a law enforcement
agency in order to comply with the prohibitions described above. The
procedure would in part require the defendant to disclose, under
penalty of perjury, whether the defendant owns or has possession or
custody or control of any firearms and to list those firearms. The
bill would provide procedures for persons in or out of custody to
relinquish their firearms, including designating a law enforcement
agency or a person as the defendant's require the defendant or the
defendant's designee to file a form showing, among other things, the
date the firearm was relinquished. Failure to timely file the form
would, subject to exception, be an infraction punishable by a fine
not exceeding $100.
By expanding the scope of the offense of perjury, and creating a
new infraction, this bill would impose a state-mandated local
program. By imposing, additional duties on local law enforcement
agencies, this bill would impose a state-mandated local program.
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.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12021 of the Penal Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, the State of California, or any
other state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns,
purchases, receives, or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, and who owns or has in his or
her possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422,
626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section
12034, Section 12040, subdivision (b) of Section 12072, subdivision
(a) of former Section 12100, Section 12220, 12320, or 12590, or
Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any
firearm-related offense pursuant to Sections 871.5 and 1001.5 of the
Welfare and Institutions Code, or of the conduct punished in
paragraph (3) of subdivision (g) of Section 12072, and who, within 10
years of the conviction, owns, purchases, receives, or has in his or
her possession or under his or her custody or control, any firearm
is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. The court, on forms prescribed by
the Department of Justice, shall notify the department of persons
subject to this subdivision. However, the prohibition in this
paragraph may be reduced, eliminated, or conditioned as provided in
paragraph (2) or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge who
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making each
of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision no matter when the prior conviction
occurred.
(ii) In making its decision, the court shall consider the
petitioner's continued employment, the interest of justice, any
relevant evidence, and the totality of the circumstances. The court
shall require, as a condition of granting relief from the prohibition
under this section, that the petitioner agree to participate in
counseling as deemed appropriate by the court. Relief from the
prohibition shall not relieve any other person or entity from any
liability that might otherwise be imposed. It is the intent of the
Legislature that courts exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, nothing in this paragraph shall be construed to
require courts to grant relief to any particular petitioner. It is
the intent of the Legislature to permit persons who were convicted of
an offense specified in Section 273.5, 273.6, or 646.9 to seek
relief from the prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1) may petition the court only once
for relief from this prohibition. The petition shall be filed with
the court in which the petitioner was sentenced. If possible, the
matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision, no matter when the prior
conviction occurred.
(ii) In making its decision, the court may consider the interest
of justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing in
this paragraph shall be construed to require courts to grant relief
to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3) shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) (1) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control, any firearm but who is not subject to subdivision (a) or (c)
is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. The court, on forms provided by the
Department of Justice, shall notify the department of persons subject
to this subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(2) (A) (i) For any
person who is subject to subdivision (a), (b), or (c), the court
shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant
prohibited by this section from owning, purchasing, receiving,
possessing or having under his or her custody or control, any
firearm. The notice shall inform the defendant of the prohibition
regarding firearms and include a form to facilitate the transfer of
firearms. instruct the defendant that he or she is
prohibited from owning, purchasing, receiving, possessing, or having
under his or her custody or control, any firearm, and that he or she
shall relinquish all firearms in the manner provided in this section.
The court shall provide a notice and form which shall state the
prohibition, the manner in which firearms may be relinquished, and
the penalty imposed for failure to comply. The form shall require the
defendant to declare, under penalty of perjury, whether or not he or
she owned, possessed, or had in his or her custody any firearms at
the time judgment was imposed, and shall require the defendant to
specify, with as much detail as possible, the make, model, and
location of each of the firearms. The form shall require the
defendant to relinquish all firearms within five days of the earlier
of judgment or release from custody, or within 14 days if he or she
is in custody continuously for that period following judgment, and to
state the date that each firearm was relinquished and the
name of the firearms dealer or law enforcement agency to which it
was relinquished. The form shall inform the defendant that a person
who relinquishes any firearm to a law enforcement agency pursuant to
this section voluntarily abandons all rights and claims to the
relinquished firearm, and shall not be entitled to sell or transfer
title of the firearm to anyone following relinquishment of the
firearm to the law enforcement agency.
(ii) The form shall require the
defendant to explain in detail the circumstances surrounding the loss
or theft of any firearm that the defendant previously
owned, possessed, or had under his or her custody or control, the
loss or theft of which renders him or her unable to fully comply with
these provisions. The form shall further require the
defendant to explain in detail any action taken to report the loss or
theft to any law enforcement agency or insurance provider. The
arresting law enforcement agency shall forward to the Department of
Justice any form submitted by a defendant which identifies lost or
stolen firearms. The form shall also provide for the defendant to
grant power of attorney over any identified firearms and name a
designee, pursuant to subparagraph (D). Failure to provide the
notice shall not be a defense to a violation of this section.
(B) For any person who is subject to subdivision (a), (b), or (c),
following the imposition of judgment the defendant shall relinquish
any firearm he or she owns, possesses, or has within his or her
custody or control in the manner described in subparagraphs (C) and
(D).
(C) (i) For any defendant who is not in custody following the
imposition of judgment, the defendant shall dispose of any firearm he
or she owns, possesses, or has within his or her custody or control
within five days of the imposition of judgment by surrendering the
firearm to the control of local law enforcement officials, or by
selling the firearm to a licensed firearms dealer.
(ii) During the five days following the imposition of judgment,
the defendant shall not be prosecuted under subdivision (a), (b), or
(c) for his or her ownership, custody or control of a firearm, or his
or her possession of a firearm either within his or her home or
while lawfully transporting the firearm in order to comply with these
provisions.
(iii) Following relinquishment, but within the five days following
the imposition of judgment, the defendant shall submit the completed
form described in subparagraph (A) to the arresting law enforcement
agency.
(D) (i) For any defendant who is in custody following the
imposition of judgment, the defendant shall, using the form described
in subparagraph (A), grant power of attorney over any firearm
identified pursuant to subparagraph (A) to a designee not otherwise
prohibited from possessing firearms under state and federal law. The
defendant may name a law enforcement agency as his or her designee.
(ii) Within 14 days following the imposition of judgment, the
designee shall dispose of any firearm by surrendering the firearm to
the control of local law enforcement officials, or by selling the
firearm to a licensed firearms dealer.
(iii) During the 14 days following the imposition of judgment, a
defendant who is in custody shall not be prosecuted under subdivision
(a), (b), or (c) for his or her ownership of a firearm to be
relinquished.
(iv) Following relinquishment, but within the 14 days following
the imposition of judgment, the designee shall submit the completed
form described in subparagraph (A) to the arresting law enforcement
agency.
(v) If the defendant is released from custody during the 14 days
following the imposition of judgment and a designee has not yet taken
temporary possession of any firearm to be relinquished as described
above, the defendant shall, within five days following his or her
release, relinquish any firearm in the manner described in
subparagraph (C).
(E) Where relinquishment of a firearm threatens a defendant's
constitutional right against self-incrimination, the defendant shall
have use immunity for the act of relinquishment.
(F) Failure by a defendant who was not in custody or of a designee
of a defendant who was in custody, except a designee that is a law
enforcement agency, to timely file the completed form described in
subparagraph (A) with the arresting law enforcement agency shall
constitute an infraction punishable by a fine not exceeding one
hundred dollars ($100).
(G) Local law enforcement agencies are urged to sign up with the
Department of Justice to receive updated information from the
Prohibited Armed Persons File, as described in Sections 12010 to
12012, inclusive. Local law enforcement is further encouraged to
review this information against the declarations in the submitted
forms described in subparagraph (A) and to retrieve illegally
possessed firearms whenever possible.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, any offense enumerated in paragraph (1) of subdivision
(c), or any offense described in subdivision (a) of Section 12025,
subdivision (a) of Section 12031, or subdivision (a) of Section
12034, and (2) is subsequently adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code because the person committed an offense listed in subdivision
(b) of Section 707 of the Welfare and Institutions Code, an offense
described in subdivision (b) of Section 1203.073, any offense
enumerated in paragraph (1) of subdivision (c), or any offense
described in subdivision (a) of Section 12025, subdivision (a) of
Section 12031, or subdivision (a) of Section 12034, shall not own, or
have in his or her possession or under his or her custody or
control, any firearm until the age of 30 years. A violation of this
subdivision shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
The juvenile court, on forms prescribed by the Department of
Justice, shall notify the department of persons subject to this
subdivision. Notwithstanding any other law, the forms required to be
submitted to the department pursuant to this subdivision may be used
to determine eligibility to acquire a firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) (1) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is prohibited
from doing so by a temporary restraining order or injunction issued
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a
protective order as defined in Section 6218 of the Family Code, a
protective order issued pursuant to Section 136.2 or 646.91 of this
code, or a protective order issued pursuant to Section 15657.03 of
the Welfare and Institutions Code, is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
(2) Every person who owns or possesses a firearm knowing that he
or she is prohibited from doing so by a temporary restraining order
or injunction issued pursuant to Section 527.6 or 527.8 of the Code
of Civil Procedure, a protective order as defined in Section 6218 of
the Family Code, a protective order issued pursuant to Section 136.2
or 646.91 of this code, or a protective order issued pursuant to
Section 15657.03 of the Welfare and Institutions Code, is guilty of a
public offense, which shall be punishable by imprisonment in a
county jail not exceeding one year, by a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine.
(3) The Judicial Council shall provide notice on all protective
orders that the respondent is prohibited from owning, possessing,
purchasing, receiving, or attempting to purchase or receive a firearm
while the protective order is in effect. The order shall also state
that the firearm shall be relinquished to the local law enforcement
agency for that jurisdiction or sold to a licensed gun dealer, and
that proof of surrender or sale shall be filed within a specified
time of receipt of the order. The order shall state the penalties for
a violation of the prohibition. The order shall also state on its
face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of this
subdivision, the court shall impose probation consistent with
Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) 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.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to
the law enforcement agency that he or she is transporting the
firearm to the law enforcement agency for disposition according to
law.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) 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 subdivision.
(i) Subject to available funding, the Attorney General, working
with the Judicial Council, the California Alliance Against Domestic
Violence, prosecutors, and law enforcement, probation, and parole
officers, shall develop a protocol for the implementation of the
provisions of this section. The protocol shall be designed to
facilitate the enforcement of restrictions on firearm ownership,
including provisions for giving notice to defendants who are
restricted, provisions for informing those defendants of the
procedures by which defendants shall dispose of firearms when
required to do so, provisions explaining how defendants shall provide
proof of the lawful disposition of firearms, and provisions
explaining how defendants may obtain possession of seized firearms
when legally permitted to do so pursuant to this section or any other
provision of law. The protocol shall be completed on or before
January 1, 2005.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.
However, 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.