SB 755, as amended, Wolk. Firearms: prohibited persons.
(1) Existing law, subject to exceptions, provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess, or have under his or her custody or control, any firearm. Violation of this prohibition is 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.
This bill would add to the list of misdemeanors, the conviction for which is subject to those prohibitions, misdemeanor offenses of violating the above provisions as well as threatening a peace officer, removing a weapon from the person of a peace officer, hazing, transferring a firearm without completing the transaction through a licensed firearms dealer, furnishing ammunition to a minor, possession of ammunition by a person prohibited from having a firearm, furnishing ammunition to a person prohibited from possessing ammunition, carrying ammunition onto school grounds, carrying a loaded or concealed weapon if the person has been previously convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, or if the firearm is not registered, participation in any criminal street gang, a public offense committed for the benefit of a criminal street gang, and disobedience to the terms of an injunction that restrains the activities of a criminal street gang.
The bill would also apply the above 10-year prohibition to a person who has been convicted of 2 or more specified crimes in a 3-year period involving intoxicationbegin delete and a person who has been convicted of possessing any controlled substanceend deletebegin insert
or possession of certain controlled substancesend insert for sale. By changing the definition of a crime, this bill would impose a state-mandated local program.
(2) Existing law prohibits certain specified individuals, including a person who has been adjudicated a danger to others as a result of a mental disorder or mental illness, a person who has been adjudicated a mentally disordered sex offender, a person who has been found not guilty by reason of insanity, or a person who has been placed under conservatorship by a court, among others, from possessing firearms or deadly weapons.
Existing law authorizes a court to order a person to obtain assisted outpatient treatment if certain criteria are met, including that the person is suffering from a mental illness and is unlikely to survive safely in the community without supervision.
This bill would prohibit a person who has been ordered by a court to obtain assisted outpatient treatment from purchasing or possessing any firearm or other deadly weapon while subject to assisted outpatient treatment. The bill would require the court to notify the Department of Justice of the order prohibiting the person from possessing a firearm or other deadly weapon within 2 days of the order, and to notify the Department of Justice when the person is no longer subject to assisted outpatient treatment. Because a violation of this provision would be a crime, this bill would impose a state-mandated local program.
(3) Existing constitutional provisions require that a statute that limits the right of access to meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by that limitation and the need for protecting that interest.
This bill would make a legislative finding and declaration relating to the necessity of treating reports to the Department of Justice as confidential in order to protect the privacy of individuals ordered to obtain assisted outpatient treatment.
(4) 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 no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
The Legislature finds and declares that in order
2to protect the privacy of individuals ordered to obtain assisted
3outpatient treatment, it is necessary that reports made by a court
4to the Department of Justice pursuant to Section 3 of this act be
5confidential, except as provided in this act.
Section 29805 of the Penal Code is amended to read:
(a) Except as provided in Section 29855 or subdivision
8(a) of Section 29800, any person who has been convicted of a
9misdemeanor violation of this section, Section 69, 71, 76, 136.1,
10136.5, or 140, subdivision (b) or (d) of Section 148, paragraph
11(10) of subdivision (a) of Section 166, Section 171b, paragraph
12(1) of subdivision (a) of Section 171c, Section 171d, subdivision
13(a) or (d) of Section 186.22, Section 186.28, 240, 241, 242, 243,
14243.4, 244.5, 245, 245.5, 245.6, 246.3, 247, 273.5, 273.6, 417,
15417.6, 422, 626.9, 646.9, or 830.95, subdivision (a) of former
16Section 12100, as that section read at any time from when it was
17enacted by Section 3 of Chapter 1386 of the Statutes of 1988 to
18when it was repealed by Section 18 of Chapter 23 of the
Statutes
19of 1994, Section 17500, 17510, 25300, 25800, 26500, 30300,
2030305, 30306, 30310, 30315, or 32625, subdivision (b) or (d) of
21Section 26100, or Section 27510, or Section 8100, 8101, or 8103
22of the Welfare and Institutions Code, any firearm-related offense
23pursuant to Sections 871.5 and 1001.5 of the Welfare and
24
Institutions Code, Section 25400 that is punishable pursuant to
25paragraph (5) or (6) of subdivision (c) of Section 25400, Section
2625850 that is punishable pursuant to paragraph (5) or (6) of
27subdivision (c) of Section 25850, or of the conduct punished in
28subdivision (c) of Section 27590, and who, within 10 years of the
29conviction, owns, purchases, receives, or has in possession or under
30custody or control, any firearm is guilty of a public offense, which
P4 1shall be punishable by imprisonment in a county jail not exceeding
2one year or in the state prison, by a fine not exceeding one thousand
3dollars ($1,000), or by both that imprisonment and fine.
4(b) Except as provided in Section 29855 or subdivision (a) of
5Section 29800, any person who has been convicted ofbegin insert
misdemeanor
6violations of two or more ofend insert
any of the following offenses and
7who, within 10 years of the conviction, owns, purchases, receives,
8or has in possession or under custody or control, any firearm is
9guilty of a public offense, which shall be punishable by
10imprisonment in a county jail not exceeding one year or in the
11state prison, by a fine not exceeding one thousand dollars ($1,000),
12or by both that imprisonment and fine:
13(1) The person has been convicted of a misdemeanor violation
14of two or more of the following offenses within a three-year period:
32 15(A)
end delete
16begin insert(1)end insert Subdivision (e) of Section 1700 of the Business and
17Professions Code.
34 18(B)
end delete
19begin insert(2)end insert Subdivision (e) of Section 1958 of the Business and
20Professions Code.
36 21(C)
end delete22begin insert(3)end insert Section 2280 of the Business and Professions Code.
37 23(D)
end delete24begin insert(4)end insert Section 4327 of the Business and Professions Code.
38 25(E)
end delete
26begin insert(5)end insert Subdivision (b), (c), (d), or (f) of Section 655 of the Harbors
27and Navigation Code.
40 28(F)
end delete29begin insert(6)end insert Section 655.4 of the Harbors and Navigation Code.
begin insert
30(7) Possession of a controlled substance with intent to sell in
31violation of Section 11357.5 of the Health and Safety Code.
32(8) Possession of a controlled substance with intent to sell in
33violation of paragraph (1) of subdivision (b) of Section 11375 of
34the Health and Safety Code.
35(9) Possession of a
controlled substance with intent to sell in
36violation of Section 11379.2 of the Health and Safety Code.
P5 1 37(G)
end delete38begin insert(10)end insert Section 11550 of the Health and Safety Code.
2 39(H)
end delete40begin insert(11)end insert Section 191.5.
3 P5 1(I)
end delete2begin insert(12)end insert Subdivision (f) of Section 647.
4 3(J)
end delete4begin insert(13)end insert Section 21407.1 of the Public Utilities Code.
5 5(K)
end delete6begin insert(14)end insert Section 21200.5 of the Vehicle Code.
6 7(L)
end delete8begin insert(15)end insert Section 23152 of the Vehicle Code.
7 9(M)
end delete10begin insert(16)end insert Section 23153 of the Vehicle Code.
8 11(N)
end delete12begin insert(17)end insert Section 23154 of the Vehicle Code.
13(2) The person has been convicted of possessing any controlled
14substance for sale.
15(c) The court, on forms prescribed by the Department of Justice,
16shall notify the department of persons subject to this section.
17However, the prohibition in this section may be reduced,
18eliminated, or conditioned as provided in Section 29855 or 29860.
Section 8103 of the Welfare and Institutions Code is
20amended to read:
(a) (1) No person who after October 1, 1955, has been
22adjudicated by a court of any state to be a danger to others as a
23result of a mental disorder or mental illness, or who has been
24adjudicated to be a mentally disordered sex offender, shall purchase
25or receive, or attempt to purchase or receive, or have in his or her
26possession, custody, or control any firearm or any other deadly
27weapon unless there has been issued to the person a certificate by
28the court of adjudication upon release from treatment or at a later
29date stating that the person may possess a firearm or any other
30deadly weapon without endangering others, and the person has
31not, subsequent to the issuance of the certificate, again been
32adjudicated by a court to
be a danger to others as a result of a
33mental disorder or mental illness.
34(2) The court shall immediately notify the Department of Justice
35of the court order finding the individual to be a person described
36in paragraph (1). The court shall also notify the Department of
37Justice of any certificate issued as described in paragraph (1).
38(b) (1) No person who has been found, pursuant to Section
391026 of the Penal Code or the law of any other state or the United
40States, not guilty by reason of insanity of murder, mayhem, a
P6 1violation of Section 207, 209, or 209.5 of the Penal Code in which
2the victim suffers intentionally inflicted great bodily injury,
3carjacking or robbery in which the victim suffers great bodily
4injury, a violation of Section 451 or 452 of the Penal
Code
5involving a trailer coach, as defined in Section 635 of the Vehicle
6Code, or any dwelling house, a violation of paragraph (1) or (2)
7of subdivision (a) of Section 262 or paragraph (2) or (3) of
8subdivision (a) of Section 261 of the Penal Code, a violation of
9Section 459 of the Penal Code in the first degree, assault with
10intent to commit murder, a violation of Section 220 of the Penal
11Code in which the victim suffers great bodily injury, a violation
12of Section 18715, 18725, 18740, 18745, 18750, or 18755 of the
13Penal Code, or of a felony involving death, great bodily injury, or
14an act which poses a serious threat of bodily harm to another
15person, or a violation of the law of any other state or the United
16States that includes all the elements of any of the above felonies
17as defined under California law, shall purchase or receive, or
18attempt to purchase or receive, or have in his or her possession or
19under
his or her custody or control any firearm or any other deadly
20weapon.
21(2) The court shall immediately notify the Department of Justice
22of the court order finding the person to be a person described in
23paragraph (1).
24(c) (1) No person who has been found, pursuant to Section 1026
25of the Penal Code or the law of any other state or the United States,
26not guilty by reason of insanity of any crime other than those
27described in subdivision (b) shall purchase or receive, or attempt
28to purchase or receive, or shall have in his or her possession,
29custody, or control any firearm or any other deadly weapon unless
30the court of commitment has found the person to have recovered
31sanity, pursuant to Section 1026.2 of the Penal Code or the law of
32any other state or the
United States.
33(2) The court shall immediately notify the Department of Justice
34of the court order finding the person to be a person described in
35paragraph (1). The court shall also notify the Department of Justice
36when it finds that the person has recovered his or her sanity.
37(d) (1) No person found by a court to be mentally incompetent
38to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code
39or the law of any other state or the United States, shall purchase
40or receive, or attempt to purchase or receive, or shall have in his
P7 1or her possession, custody, or control, any firearm or any other
2deadly weapon, unless there has been a finding with respect to the
3person of restoration to competence to stand trial by the committing
4court, pursuant to Section
1372 of the Penal Code or the law of
5any other state or the United States.
6(2) The court shall immediately notify the Department of Justice
7of the court order finding the person to be mentally incompetent
8as described in paragraph (1). The court shall also notify the
9Department of Justice when it finds that the person has recovered
10his or her competence.
11(e) (1) No person who has been placed under conservatorship
12by a court, pursuant to Section 5350 or the law of any other state
13or the United States, because the person is gravely disabled as a
14result of a mental disorder or impairment by chronic alcoholism,
15shall purchase or receive, or attempt to purchase or receive, or
16shall have in his or her possession, custody, or control, any firearm
17or any other deadly
weapon while under the conservatorship if, at
18the time the conservatorship was ordered or thereafter, the court
19which imposed the conservatorship found that possession of a
20firearm or any other deadly weapon by the person would present
21a danger to the safety of the person or to others. Upon placing any
22person under conservatorship, and prohibiting firearm or any other
23deadly weapon possession by the person, the court shall notify the
24person of this prohibition.
25(2) The court shall immediately notify the Department of Justice
26of the court order placing the person under conservatorship and
27prohibiting firearm or any other deadly weapon possession by the
28person as described in paragraph (1). The notice shall include the
29date the conservatorship was imposed and the date the
30conservatorship is to be terminated. If the conservatorship is
31subsequently
terminated before the date listed in the notice to the
32Department of Justice or the court subsequently finds that
33possession of a firearm or any other deadly weapon by the person
34would no longer present a danger to the safety of the person or
35others, the court shall immediately notify the Department of Justice.
36(3) All information provided to the Department of Justice
37pursuant to paragraph (2) shall be kept confidential, separate, and
38apart from all other records maintained by the Department of
39Justice, and shall be used only to determine eligibility to purchase
40or possess firearms or other deadly weapons. Any person who
P8 1knowingly furnishes that information for any other purpose is
2guilty of a misdemeanor. All the information concerning any person
3shall be destroyed upon receipt by the Department of Justice of
4notice of the termination of
conservatorship as to that person
5pursuant to paragraph (2).
6(f) (1) No person who has been (A) taken into custody as
7provided in Section 5150 because that person is a danger to himself,
8herself, or to others, (B) assessed within the meaning of Section
95151, and (C) admitted to a designated facility within the meaning
10of Sections 5151 and 5152 because that person is a danger to
11himself, herself, or others, shall own, possess, control, receive, or
12purchase, or attempt to own, possess, control, receive, or purchase
13any firearm for a period of five years after the person is released
14from the facility. A person described in the preceding sentence,
15however, may own, possess, control, receive, or purchase, or
16attempt to own, possess, control, receive, or purchase any firearm
17if the superior court has, pursuant to paragraph (5),
found that the
18people of the State of California have not met their burden pursuant
19to paragraph (6).
20(2) (A) For each person subject to this subdivision, the facility
21shall immediately, on the date of admission, submit a report to the
22Department of Justice, on a form prescribed by the Department of
23Justice, containing information that includes, but is not limited to,
24the identity of the person and the legal grounds upon which the
25person was admitted to the facility.
26Any report submitted pursuant to this paragraph shall be
27confidential, except for purposes of the court proceedings described
28in this subdivision and for determining the eligibility of the person
29to own, possess, control, receive, or purchase a firearm.
30(B) Commencing July 1, 2012, facilities shall submit reports
31pursuant to this paragraph exclusively by electronic means, in a
32manner prescribed by the Department of Justice.
33(3) Prior to, or concurrent with, the discharge, the facility shall
34inform a person subject to this subdivision that he or she is
35prohibited from owning, possessing, controlling, receiving, or
36purchasing any firearm for a period of five years. Simultaneously,
37the facility shall inform the person that he or she may request a
38hearing from a court, as provided in this subdivision, for an order
39permitting the person to own, possess, control, receive, or purchase
40a firearm. The facility shall provide the person with a form for a
P9 1request for a hearing. The Department of Justice shall prescribe
2the form. Where the person requests a hearing at the time of
3discharge,
the facility shall forward the form to the superior court
4unless the person states that he or she will submit the form to the
5superior court.
6(4) The Department of Justice shall provide the form upon
7request to any person described in paragraph (1). The Department
8of Justice shall also provide the form to the superior court in each
9county. A person described in paragraph (1) may make a single
10request for a hearing at any time during the five-year period. The
11request for hearing shall be made on the form prescribed by the
12department or in a document that includes equivalent language.
13(5) Any person who is subject to paragraph (1) who has
14requested a hearing from the superior court of his or her county
15of residence for an order that he or she may own, possess, control,
16receive, or
purchase firearms shall be given a hearing. The clerk
17of the court shall set a hearing date and notify the person, the
18Department of Justice, and the district attorney. The people of the
19State of California shall be the plaintiff in the proceeding and shall
20be represented by the district attorney. Upon motion of the district
21attorney, or on its own motion, the superior court may transfer the
22hearing to the county in which the person resided at the time of
23his or her detention, the county in which the person was detained,
24or the county in which the person was evaluated or treated. Within
25seven days after the request for a hearing, the Department of Justice
26shall file copies of the reports described in this section with the
27superior court. The reports shall be disclosed upon request to the
28person and to the district attorney. The court shall set the hearing
29within 30 days of receipt of the request for a
hearing. Upon
30showing good cause, the district attorney shall be entitled to a
31continuance not to exceed 14 days after the district attorney was
32notified of the hearing date by the clerk of the court. If additional
33
continuances are granted, the total length of time for continuances
34shall not exceed 60 days. The district attorney may notify the
35county mental health director of the hearing who shall provide
36information about the detention of the person that may be relevant
37to the court and shall file that information with the superior court.
38That information shall be disclosed to the person and to the district
39attorney. The court, upon motion of the person subject to paragraph
40(1) establishing that confidential information is likely to be
P10 1discussed during the hearing that would cause harm to the person,
2shall conduct the hearing in camera with only the relevant parties
3present, unless the court finds that the public interest would be
4better served by conducting the hearing in public. Notwithstanding
5any other law, declarations, police reports, including criminal
6history information, and any other
material and relevant evidence
7that is not excluded under Section 352 of the Evidence Code shall
8be admissible at the hearing under this section.
9(6) The people shall bear the burden of showing by a
10preponderance of the evidence that the person would not be likely
11to use firearms in a safe and lawful manner.
12(7) If the court finds at the hearing set forth in paragraph (5)
13that the people have not met their burden as set forth in paragraph
14(6), the court shall order that the person shall not be subject to the
15five-year prohibition in this section on the ownership, control,
16receipt, possession, or purchase of firearms. A copy of the order
17shall be submitted to the Department of Justice. Upon receipt of
18the order, the Department of Justice shall delete any reference to
19the prohibition
against firearms from the person’s state mental
20health firearms prohibition system information.
21(8) Where the district attorney declines or fails to go forward
22
in the hearing, the court shall order that the person shall not be
23subject to the five-year prohibition required by this subdivision
24on the ownership, control, receipt, possession, or purchase of
25firearms. A copy of the order shall be submitted to the Department
26of Justice. Upon receipt of the order, the Department of Justice
27shall, within 15 days, delete any reference to the prohibition against
28firearms from the person’s state mental health firearms prohibition
29system information.
30(9) Nothing in this subdivision shall prohibit the use of reports
31filed pursuant to this section to determine the eligibility of persons
32to own, possess, control, receive, or purchase a firearm if the person
33is the subject of a criminal investigation, a part of which involves
34the ownership, possession, control, receipt, or purchase of a
35firearm.
36(g) (1) No person who has been certified for intensive treatment
37under Section 5250, 5260, or 5270.15 shall own, possess, control,
38receive, or purchase, or attempt to own, possess, control, receive,
39or purchase, any firearm for a period of five years.
P11 1Any person who meets the criteria contained in subdivision (e)
2or (f) who is released from intensive treatment shall nevertheless,
3if applicable, remain subject to the prohibition contained in
4subdivision (e) or (f).
5(2) (A) For each person certified for intensive treatment under
6paragraph (1), the facility shall immediately submit a report to the
7Department of Justice, on a form prescribed by the department,
8containing information regarding the person,
including, but not
9limited to, the legal identity of the person and the legal grounds
10upon which the person was certified. Any report submitted pursuant
11to this paragraph shall only be used for the purposes specified in
12paragraph (2) of subdivision (f).
13(B) Commencing July 1, 2012, facilities shall submit reports
14pursuant to this paragraph exclusively by electronic means, in a
15manner prescribed by the Department of Justice.
16(3) Prior to, or concurrent with, the discharge of each person
17certified for intensive treatment under paragraph (1), the facility
18shall inform the person of that information specified in paragraph
19(3) of subdivision (f).
20(4) Any person who is subject to paragraph (1) may petition the
21superior
court of his or her county of residence for an order that
22he or she may own, possess, control, receive, or purchase firearms.
23At the time the petition is filed, the clerk of the court shall set a
24hearing date and notify the person, the Department of Justice, and
25the district attorney. The people of the State of California shall be
26the respondent in the proceeding and shall be represented by the
27district attorney. Upon motion of the district attorney, or on its
28own motion, the superior court may transfer the petition to the
29county in which the person resided at the time of his or her
30detention, the county in which the person was detained, or the
31county in which the person was evaluated or treated. Within seven
32days after receiving notice of the petition, the Department of Justice
33shall file copies of the reports described in this section with the
34superior court. The reports shall be disclosed upon request
to the
35person and to the district attorney. The district attorney shall be
36entitled to a continuance of the hearing to a date of not less than
3714 days after the district attorney was notified of the hearing date
38by the clerk of the court. The district attorney may notify the county
39mental health director of the petition, and the county mental health
40director shall provide information about the detention of the person
P12 1that may be relevant to the court and shall file that information
2with the superior court. That information shall be disclosed to the
3person and to the district attorney. The court, upon motion of the
4person subject to paragraph (1) establishing that confidential
5information is likely to be discussed during the hearing that would
6cause harm to the person, shall conduct the hearing in camera with
7only the relevant parties present, unless the court finds that the
8public interest would be
better served by conducting the hearing
9in public. Notwithstanding any other provision of law, any
10declaration, police reports, including criminal history information,
11and any other material and relevant evidence that is not excluded
12under Section 352 of the Evidence Code, shall be admissible at
13the hearing under this section. If the court finds by a preponderance
14of the evidence that the person would be likely to use firearms in
15a safe and lawful manner, the court may order that the person may
16own, control, receive, possess, or purchase firearms. A copy of
17the order shall be submitted to the Department of Justice. Upon
18receipt of the order, the Department of Justice shall delete any
19reference to the prohibition against firearms from the person’s
20state mental health firearms prohibition system information.
21(h) For all persons identified in
subdivisions (f) and (g), facilities
22shall report to the Department of Justice as specified in those
23subdivisions, except facilities shall not report persons under
24subdivision (g) if the same persons previously have been reported
25under subdivision (f).
26Additionally, all facilities shall report to the Department of
27Justice upon the discharge of persons from whom reports have
28been submitted pursuant to subdivision (f) or (g). However, a report
29shall not be filed for persons who are discharged within 31 days
30after the date of admission.
31(i) (1) No person who has been ordered by a court to obtain
32assisted outpatient treatment pursuant to Article 9 (commencing
33with Section 5345) of Chapter 2 of Part 1 of Division 5 shall
34purchase or receive, or attempt to purchase or receive, or
shall
35have in his or her possession, custody, or control, any firearm or
36any other deadly weapon while subject to assisted outpatient
37treatment. Upon placing any person under assisted outpatient
38treatment, the court shall notify the person of this prohibition.
39(2) The court shall notify the Department of Justice of the court
40order placing the person in assisted outpatient treatment and
P13 1prohibiting firearm or any other deadly weapon possession by the
2person described in paragraph (1) within two days of the order.
3The court shall also notify the Department of Justice when the
4person subject to paragraph (1) is no longer subject to assisted
5outpatient treatment. Any report submitted pursuant to this
6paragraph shall be confidential, except for purposes of the court
7proceedings specified in this subdivision and for purposes of
8determining
the eligibility of the person to own, possess, control,
9receive, or purchase a firearm.
10(j) Every person who owns or possesses or has under his or her
11custody or control, or purchases or receives, or attempts to purchase
12or receive, any firearm or any other deadly weapon in violation of
13this section shall be punished by imprisonment pursuant to
14subdivision (h) of Section 1170 of the Penal Code or in a county
15jail for not more than one year.
16(k) “Deadly weapon,” as used in this section, has the meaning
17prescribed by Section 8100.
No reimbursement is required by this act pursuant to
19Section 6 of Article XIII B of the California Constitution because
20the only costs that may be incurred by a local agency or school
21district will be incurred because this act creates a new crime or
22infraction, eliminates a crime or infraction, or changes the penalty
23for a crime or infraction, within the meaning of Section 17556 of
24the Government Code, or changes the definition of a crime within
25the meaning of Section 6 of Article XIII B of the California
26Constitution.
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97