BILL ANALYSIS
AB 814
Page 1
Date of Hearing: April 14, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 814 (Krekorian) - As Amended: April 13, 2009
SUMMARY : Establishes a procedure for a defendant who owns,
possesses, or has custody or control of a firearm to sell that
firearm to a firearms dealer or relinquish the firearm to a law
enforcement agency when the defendant has been convicted of a
specified offense and prohibited from owning a firearm.
Specifically, this bill :
1)Requires the defendant to name a designee and grant the
designee power of attorney for the purpose of transferring or
disposing of any firearm. The defendant may name a consenting
law enforcement agency as his or her designee.
2)Requires the court to instruct a convicted defendant, as
specified, 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 through a designee, as specified.
3)Requires the court to provide a notice and a form developed by
the Department of Justice (DOJ) which must state the
prohibition, the manner in which firearms may be relinquished,
and the penalty imposed for failure to comply. Failure to
provide the notice shall not be a defense to a violation of
failure to relinquish all firearms.
4)Mandates the form require the defendant to declare 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 describe the firearm with as much
detail as possible.
5)Provides that the form shall authorize the defendant to name a
designee and grant the designee power of attorney for the
purposes of transferring or disposing of any firearms, as
specified. The form shall require the designee to declare
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that he or she is not prohibited from possessing firearms
under state or federal law. The form shall also require the
designee to indicate his or her consent to the designation and
to state the date each firearm was relinquished and the name
of the party to whom it was relinquished.
6)Mandates the form require the defendant to explain in detail
the circumstances surrounding the loss or theft of any firearm
the defendant previously owned, possessed, or had under his or
her custody or control, the lost or theft of which renders him
or her unable to fully comply, as specified. The form shall
further require the defendant explain in detail any action
taken to report the loss or theft to any law enforcement or
insurance provider. The form shall require the defendant to
notify both the arresting law enforcement agency and the DOJ
that he or she no longer owns or possesses the firearm.
7)States the following procedures shall apply to any defendant
who is out of custody after conviction:
a) The designee shall dispose of any firearm the defendant
owns, possesses, or has within his or her custody or
control within five days of the conviction by surrendering
the firearm to the control of local law enforcement
officials, selling the firearm to a dealer or selling or
transferring the firearm to a third party by completing the
sale or transfer through a firearms dealer.
b) During the five-day period following conviction, the
defendant shall not be prosecuted under existing provisions
of law, as specified, for his or her ownership custody or
control, or possession of a firearm within his or her home,
provided the firearm was owned by the defendant prior to
conviction. This provision shall not apply to a defendant
who was, prior to conviction, already prohibited from
owning, purchasing, receiving, possessing or having under
his or her custody or control any firearm, as prohibited.
c) If the defendant does not own, possess or having within
his or her custody or control any firearms to relinquish,
the defendant shall, within five days following conviction,
submit the completed form, as specified, to the arresting
law enforcement agency.
d) If the defendant owns possesses or has within his or her
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custody or control any firearms to relinquish, following
relinquishment, but within five days following the
conviction, the designee shall submit the completed form,
as specified, to the arresting law enforcement agency. The
defendant must notify the arresting law enforcement agency
and the DOJ if a firearm has been lost of stolen.
8)States the following procedures shall apply to any defendant
in custody after conviction:
a) The designee shall dispose of any firearm the defendant
owns, possesses, or has within his or her custody or
control within 14 days of the conviction, by surrendering
the firearm to the control of local law enforcement
officials, selling the firearm to a firearms dealer, or
selling or transferring the firearm to a third party by
completing the sale or transfer through a firearms dealer.
b) During the 14-day period following the conviction, a
defendant who remains in custody shall not be prosecuted
for being in possession of a firearm, as specified,
provided the forearm was owned by the defendant prior to
the date of conviction. This provision shall not apply to
a defendant who was, prior to conviction, already
prohibited from owning, purchasing, receiving, possessing
or having under his or her custody or control any firearm,
as specified.
c) If the defendant does not own, possess or have within
his or her custody or control any firearms to relinquish,
the defendant shall, within 14 days following conviction,
submit the completed form, as specified, to the arresting
law enforcement agency.
d) If the defendant owns, possesses or has within his her
custody or control, any firearms to relinquish, the
designee shall, following relinquishment, but within 14
days of conviction, submit a completed form, as specified,
to the arresting law enforcement agency or notify both the
arresting law enforcement agency and DOJ of any loss or
theft.
e) If the defendant is released from custody during the 14
days following conviction and a designee has not yet taken
temporary possession of any firearm to be relinquished, as
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specified, the defendant shall, within five days following
his or her release, relinquished any firearm, as specified.
9)States that pursuant to provisions of law related to granting
immunity, no information directly or indirectly derived from
the form, as specified, or from a relinquished firearm shall
be sued in a criminal prosecution for illegal possession of
that firearm prior to relinquishment. This protection shall
not extend to any prosecution for the unlawful use of any
firearm.
10)States failure by a defendant or a designee. Except a
designee that is a consenting law enforcement agency, to
timely file the completed form, as specified, with the
arresting law enforcement agency shall constitute an
infraction punishable by a fine not to exceed $500.
11)Provides that local law enforcement agencies are urged to
obtain a secured mailbox from DOJ in order to receive updated
information form Prohibited Armed Persons File, as defined.
Local law enforcement is further encouraged to review this
information against the declarations in the submitted forms,
as specified, and to retrieve illegally possessed firearms
whenever possible.
12)States a law enforcement agency shall not be required to
retain a firearm that was relinquished to the law enforcement
agency, as required by this bill, for more than 30 days after
the date on which the firearm was relinquished. After the
30-day period has expired, the law enforcement agency shall
destroy the firearm, unless the firearm is retained for
official purposes, as specified.
EXISTING LAW :
1)States 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 involving
violent use of a firearm, 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. [Penal Code Section
12021(a).]
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2)Provides that any person who has been convicted of a felony or
of an offense involving violent use of a firearm, when that
conviction results from certification by the juvenile court
for prosecution as an adult in an adult court, as specified,
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.
[Penal Code Section 12021(b).]
3)States any person who has been convicted of various
misdemeanors, 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 $1,000; or by both that imprisonment
and fine. The court, on forms prescribed by DOJ, shall notify
DOJ of persons subject to this provision. [Penal Code Section
12021(c).]
4)Requires the Attorney General to establish and maintain an
online database to be known as the Prohibited Armed Persons
File. The purpose of the file is to cross-reference persons
who have ownership or possession of a firearm on or after
January 1, 1991, as indicated by a record in the Consolidated
Firearms Information System, and who, subsequent to the date
of that ownership or possession of a firearm, fall within a
class of persons who are prohibited from owning or possessing
a firearm. [Penal Code Section 12010(a).]
5)Provides that the information contained in the Prohibited
Armed Persons File shall only be available to those entities
specified in existing law, through the California Law
Enforcement Telecommunications System, for the purpose of
determining if persons are armed and prohibited from
possessing firearms. [Penal Code Section 12010(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 814 will
facilitate enforcement of existing state laws prohibiting
illegal firearm possession by establishing a clear process and
timeline for firearm relinquishment by prohibited persons.
Under the bill, upon conviction of a crime disqualifying a
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defendant from firearm possession, a defendant must be
instructed by the judge that he or she is prohibited from
owning or possessing any firearms. The judge must also
provide the defendant with a notice and form describing the
manner in which firearms may be relinquished and the penalties
attached to failure to comply.
"Upon conviction, a prohibited person must transfer his or her
firearms to a designee who must sell the firearms to a dealer,
sell or transfer them to a third party through a dealer, or
relinquish them to local law enforcement. If the prohibited
person is not in law enforcement custody following conviction,
the relinquishment process must be completed within five days.
If the prohibited person remains in custody, the process must
be completed within 14 days.
"REQUIRES PROHIBITED PERSONS TO DECLARE FIREARM OWNERSHIP:
Under the bill, all prohibited persons must, within the
relinquishment period, submit a form to local law enforcement
stating: 1) whether or not they owned any firearms to
relinquish; 2) if so, to whom any firearms were relinquished;
and 3) whether they previously owned firearms but could not
comply with the relinquishment provisions because those
firearms were lost or stolen, explaining in detail the
circumstances surrounding the loss or theft and any actions
taken to report the matter to a law enforcement agency or
insurance provider.
"ENCOURAGES LAW ENFORCEMENT TO RETRIEVE PROHIBITED WEAPONS: The
bill encourages local law enforcement to review each
defendant's sworn submissions against the DOJ's handgun
transfer databases to help identify prohibited persons who
have lied about firearm ownership or relinquishment in their
sworn submissions. The bill also encourages law enforcement
to retrieve prohibited weapons whenever possible.
"REDUCES BURDEN ON LAW ENFORCEMENT: This bill reduces the
length of time during which law enforcement must retain a
prohibited person's firearms following relinquishment, from
180 days to 30 days. If a prohibited person has not, through
his or her designee, sold a firearm by the end of the 30 days,
it becomes the property of the law enforcement agency.
"PROHIBITS SALE OF ILLEGALLY-POSSESSED FIREARMS: AB 814 also
closes a loophole in existing law that allows a prohibited
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person to sell firearms in law enforcement custody following
his or her conviction, even if the firearms had been seized in
conjunction with the person's prosecution for illegal firearm
possession. Under the bill, a prohibited person whose
firearms are seized by law enforcement may not have the
weapons sold or transferred by a firearms dealer. Instead,
these weapons will become the property of the seizing law
enforcement agency."
2)Existing Provisions Related to Firearms Prohibition for
Specified Convictions : Under current law, if a person is
convicted of any felony or of an offense involving the violent
use of a handgun, he or she may not own a firearm. If a felon
is caught in possession of a weapon, he or she may be
sentenced to a term of 16 months, two or three years in state
prison. [Penal Code Section 12021(a).] Anyone convicted of a
misdemeanor offense involving violence, as specified, he or
she may not possess a firearm for 10 years. If the defendant
is found in possession of a firearm within the 10 year period,
he or she may be sentenced to up to one year in the county
jail. [Penal Code Section 12021(c)(1).] Upon conviction, the
court is ordered to notify the DOJ of the person subject to
this prohibition. However, provisions exist to reduce or
eliminate the prohibition in certain circumstances. [Penal
Code Section 12021(c)(2)].
3)Prohibited Armed Persons File : In 2001, the Legislature
created the Prohibited Armed Persons File to ensure otherwise
prohibited persons do not continue to possess firearms.
According to the National Association of Chief Informational
Officers, "The California Department of Justice (Cal-DOJ) is
tasked with the oversight of firearms purchases and
eligibility clearance processing for the most populous state
in the country. These activities are carried out by the
Firearms Division, which serves the people of California
through education, regulation, and enforcement actions
regarding the manufacture, sale, ownership, safety training,
and transfer of firearms.
"For all persons who attempt to acquire a firearm through a
transfer or purchase, statutes require that the Firearms
Division perform a Basic Firearms Eligibility Check (BFEC) to
determine the person's eligibility. Until Senate Bill 950 (SB
950) was passed, none of the laws passed to ensure public
safety, nor resources expended to enforce these laws,
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addressed the need to enforce existing firearm prohibition
laws. There were no statutory provisions made for the timely
identification, investigation, and prosecution of prohibited
persons, and the confiscation of illegally possessed firearms.
Consequently, there were no available resources or existing
processes to compare and match firearms registration or
ownership records with prohibited category records in order to
identify persons who have become convicted of firearms
prohibiting crimes or released from the care of mental
facilities subsequent to legally acquiring firearms. That has
changed now with the passage of SB950 and the subsequent
development of the Armed Prohibited Persons System (APPS.)
"To enforce laws that prohibit certain persons from possessing
firearms, Cal-DOJ developed the Armed Prohibited Persons
System (APPS,) making California the nation's first state to
build an automated system for tracking handgun and assault
weapon owners who pose a threat to public safety. APPS
maintains information about persons who have been, or will
become, prohibited from possessing a firearm subsequent to the
legal acquisition or registration of a firearm or an assault
weapon. It also provides authorized law enforcement agencies
with inquiry capabilities to determine the prohibition status
of a person of interest.
"Cal-DOJ will populate APPS with all handgun and assault weapon
owners across the state and match them up against criminal
history records to determine who might fall into a prohibited
status. Automatic notifications from State and Federal
criminal history systems will be received daily to determine
if there is a match for a current California gun owner. When a
match is found, the system automatically raises a flag to
Firearms Division staff, which triggers an investigation into
the person's status
"Significance to the improvement of the operation of government
APPS provides the benefit of promoting peace officer and
public safety while supporting the Attorney General's
constitutional responsibility to uniformly and adequately
enforce the law. APPS provides five key operational
improvements: Ability to identify prohibited persons.
Because APPS allows what used to be disparate systems to share
information with each other, the ability to identify
prohibited persons in now readily available; Ability to
process data from disparate systems to find matches of person
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possessing firearms and persons who have been prohibited from
possessing them. APPS bridges the gap between person
information with firearms and person information with criminal
history and allows for a determination to be made as to
prohibition status; Ability to query the APPS data from the
field. APPS provides the query capability so that officers in
the field may get immediate information regarding a suspect's
status; Ability for Firearms Division Management to prioritize
workloads based on the prohibition factors associated with a
person. APPS uses a scoring model based on prohibiting
factors that allows supervisors to prioritize cases for review
based on prohibition factors, which are potential risk
factors; and, Ability to provide statistical reporting to
counties and law enforcement agencies across the state. APPS
provides reporting capabilities so that individual counties
and law enforcement agencies can receive meaningful statistics
related to the number of prohibited persons by area.
4)Arguments in Support :
a) According to the Legal Community Against Violence , "The
goal of AB 814 is simple: to help get guns out of the
hands of people who have been convicted of crimes which
render them ineligible to possess firearms. The
legislation is needed because existing state law provides
no clear process for firearm relinquishment under these
circumstances, and no mechanism to ensure that
relinquishment ever occurs. As a result, convicted
criminals remain in possession of firearms statewide.
According to the DOJ, as many as 60,000 prohibited persons
currently possess guns in violation of state law, creating
a direct threat to public safety.
"AB 814 addresses this problem by establishing a clear
procedure and timeline for firearm relinquishment. Under
this bill, when a person is convicted of a crime
disqualifying him or her from possessing firearms, the
person is informed of the disqualification by the court and
given a form describing the specific manner in which
firearms may be relinquished. AB 814 requires a prohibited
person who owns firearms to designate a consenting third
party to, within 5 or 14 days (the longer period applies
when a defendant remains in custody), sell the firearms to
a licensed dealer or to a third party through a dealer, or
relinquish them to law enforcement where they can be sold
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within 30 days.
"Prohibited persons must, within the relinquishment period,
submit the completed form to local law enforcement
declaring: 1) whether or not they owned any firearms at
the time of conviction; 2) if so, the name of the designee
and to whom the firearms were relinquished; or 3) that they
previously owned firearms that could not relinquish them
because they were lost or stolen, explaining in detail the
circumstances of the loss or theft and any action taken to
report the incident to a law enforcement agency or
insurance provider. Law enforcement is urged to review
these sworn submissions and compare them to DOJ's handgun
transfer database to help identify persons who have not
relinquished their firearms in accordance with the law.
"AB 814 will help enforce existing state law prohibiting
firearm possession by certain convicted criminals and
provide clear guidance to prohibited persons regarding
their obligation to sell or surrender their firearms. It
will also provide law enforcement with an important new
tool to protect the public from gun violence."
b) According to the Brady Campaign to Prevent Gun Violence,
California Chapter , "Existing law prohibits persons
convicted of a felony, or one of a number of misdemeanor
offenses, from possessing firearms. Currently, defendant
are advised to transfer their weapons to a third party who
must, within 30 days, relinquish firearms to local law
enforcement or sell or transfer them through a licensed
firearms dealer. Any firearms relinquished to, or seized
by law enforcement must be retained and stored for a
minimum of 180 days. Existing law provides no mechanism to
ensure and document that the firearms have actually been
relinquished. AB 814 will facilitate the public safety
intent of existing law establishing a clear process and
timeline for relinquishment. Judges must inform defendants
of the need to relinquish firearms and the manner in which
to do so. For defendants not in custody, the process must
be completed within 5 days, rather than 30 days. Further,
within the relinquishment period, defendants must submit a
form to local law enforcement stating: whether they owned
any firearms to relinquish; if so, to whim the firearms
were relinquished, and; whether they previously owned
firearms that were either lost or stolen. Such a claim
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must be supported by a report to a law enforcement agency
or an insurance provider.
"The Brady Campaign to Prevent Gun Violence believes that
there is a strong public interest in keeping firearms out
of the hands of dangerous persons. These people have
demonstrated by their actions that they pose a risk to
society and they must be disarmed. Recent enforcement
efforts by the Department of Justice (DOJ) through their
Armed and Prohibited Persons program have shown that there
are over 60,000 persons in California who have fallen into
a prohibited category and are known to be in possession of
a handgun prior to the prohibition. DOJ has conducted
sweeps to recover some of these weapons are removed at the
time of the conviction."
5)Prior Legislation : SB 950 (Brulte), Chapter 944, Statutes of
2001, established the Prohibited Armed Persons File, an online
database that cross-references information for persons
relative to the purchase and possession of firearms on or
after January 1, 1991 and information indicating those persons
who have subsequently been prohibited from owning or
possessing firearms, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County District Attorney's Office
Brady Campaign to Prevent Gun Violence, California Chapters
Brady Campaign to Prevent Gun Violence, Oakland/Alameda County
Brady Campaign to Prevent Gun Violence, Orange County
Chief of Police, City of Emeryville
California Partnership to End Domestic Violence
Chief of Police, City of Fremont
City of Los Angeles
Coalition to Stop Gun Violence
Friends Committee on Legislation
Legal Community Against Violence
Office of the District Attorney, City and County of San
Francisco
Office of the Police Chief, City of Richmond
Peace Over Violence
Physicians for Social Responsibility
Rainbow Services
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San Francisco District Attorney
Santa Ana Police Department
Women Against Gun Violence
Youth Alive
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744