BILL NUMBER: SB 127 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 19, 2013
INTRODUCED BY Senator Gaines
JANUARY 22, 2013
An act to amend Section 8103 Sections 8104
and 8105 of the Welfare and Institutions Code, relating to
firearms.
LEGISLATIVE COUNSEL'S DIGEST
SB 127, as amended, Gaines. Firearms: mentally disordered persons:
possession. report to Department of Justice.
(1) Existing law prohibits mentally ill persons who meet specified
criteria from possessing firearms or deadly weapons. Existing law
requires the State Department of State Hospitals to maintain records
in its possession that are necessary to identify persons who come
within this prohibition and to make these records available to the
Department of Justice upon request.
This bill would require the State Department of State Hospitals to
make these records available to the Department of Justice
electronically, within 24 hours, in a manner prescribed by the
Department of Justice.
(2) Existing law prohibits a person from possessing a firearm or
deadly weapon for a period of 6 months when the person has
communicated a serious threat of physical violence against a
reasonably identifiable victim or victims to a licensed
psychotherapist. Existing law requires the licensed psychotherapist
to immediately report the identity of the person to a local law
enforcement agency, and requires the local law enforcement agency to
immediately notify the Department of Justice.
This bill would instead require the licensed psychotherapist to
make the report to local law enforcement electronically, within 24
hours, in a manner prescribed by the department. The bill would also
require the local law enforcement agency receiving the report to
notify the department electronically within 24 hours, in a manner
prescribed by the department.
Existing law prohibits a person who has been adjudicated by a
court of any state to be a danger to others as a result of a mental
disorder or mental illness, or who has been adjudicated to be a
mentally disordered sex offender, after October 1, 1955, from
receiving or possessing any firearm or any other deadly weapon unless
the person has been issued a certificate by the court of
adjudication stating that the person may possess a firearm or any
other deadly weapon. A person who violates or attempts to violate
this provision is guilty of a felony or a misdemeanor.
This bill would prohibit persons adjudicated to be a danger
pursuant to the above provisions after January 1, 2014, from
receiving or possessing any firearm or any other deadly weapon and
remove the authority of a court to issue a certificate for that
person to possess a firearm or any other deadly weapon. Because a
violation of above prohibition would be a crime, 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 no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8104 of the Welfare
and Institutions Code is amended to read:
8104. The State Department of State Hospitals shall maintain in a
convenient central location and shall make available to the
Department of Justice those records that the State Department of
State Hospitals has in its possession that are necessary to identify
persons who come within Section 8100 or 8103. These records shall be
made available to the Department of Justice electronically,
within 24 hours, in a manner prescribed by the Department of Justice,
upon request. The Department of Justice shall make these
requests only with respect to its duties with regard to applications
for permits for, or to carry, or the possession, purchase, or
transfer of, explosives as defined in Section 12000 of the Health and
Safety Code, devices defined in Section 16250, 16530, or 16640 of
the Penal Code, in subdivisions (a) to (d), inclusive, of Section
16520 of the Penal Code, or in subdivision (a) of Section 16840 of
the Penal Code, machineguns as defined in Section 16880 of the Penal
Code, short-barreled shotguns or short-barreled rifles as defined in
Sections 17170 and 17180 of the Penal Code, assault weapons as
defined in Section 30510 of the Penal Code, and destructive devices
as defined in Section 16460 of the Penal Code, or to determine the
eligibility of a person to acquire, carry, or possess a firearm,
explosive, or destructive device by a person who is subject to a
criminal investigation, a part of which involves the acquisition,
carrying, or possession of a firearm by that person. These records
shall not be furnished or made available to any person unless the
department determines that disclosure of any information in the
records is necessary to carry out its duties with respect to
applications for permits for, or to carry, or the possession,
purchase, or transfer of, explosives, destructive devices, devices as
defined in Section 16250, 16530, or 16640 of the Penal Code, in
subdivisions (a) to (d), inclusive, of Section 16520 of the Penal
Code, or in subdivision (a) of Section 16840 of the Penal Code,
short-barreled shotguns, short-barreled rifles, assault weapons, and
machineguns, or to determine the eligibility of a person to acquire,
carry, or possess a firearm, explosive, or destructive device by a
person who is subject to a criminal investigation, a part of which
involves the acquisition, carrying, or possession of a firearm by
that person.
SEC. 2. Section 8105 of the Welfare and
Institutions Code is amended to read:
8105. (a) The Department of Justice shall request each public and
private mental hospital, sanitarium, and institution to submit to
the department that information that the department deems necessary
to identify those persons who are within subdivision (a) of Section
8100, in order to carry out its duties in relation to firearms,
destructive devices, and explosives.
(b) Upon request of the Department of Justice pursuant to
subdivision (a), each public and private mental hospital, sanitarium,
and institution shall submit to the department that information
which the department deems necessary to identify those persons who
are within subdivision (a) of Section 8100, in order to carry out its
duties in relation to firearms, destructive devices, and explosives.
(c) A licensed psychotherapist shall immediately
report to a local law enforcement agency
electronically, within 24 hours, in a manner prescribed by the
Department of Justice, the identity of a person subject to
subdivision (b) of Section 8100. Upon receipt of the report, the
local law enforcement agency, on a form prescribed by the Department
of Justice, shall immediately notify the
department electronically, within 24 hours, in a manner
prescribed by the department, of the person who is subject to
subdivision (b) of Section 8100.
(d) All information provided to the Department of Justice pursuant
to this section shall be kept confidential, separate and apart from
all other records maintained by the department. The information
provided to the Department of Justice pursuant to this section shall
be used only for any of the following purposes:
(1) By the department to determine eligibility of a person to
acquire, carry, or possess firearms, destructive devices, or
explosives.
(2) For the purposes of the court proceedings described in
subdivision (b) of Section 8100 to determine the eligibility of the
person who is bringing the petition pursuant to paragraph (3) of
subdivision (b) of Section 8100.
(3) To determine the eligibility of a person to acquire, carry, or
possess firearms, destructive devices, or explosives who is the
subject of a criminal investigation, if a part of the criminal
investigation involves the acquisition, carrying, or possession of
firearms, explosives, or destructive devices by that person.
(e) Reports shall not be required or requested under this section
where the same person has been previously reported pursuant to
Section 8103 or 8104.
SECTION 1. Section 8103 of the Welfare and
Institutions Code is amended to read:
8103. (a) (1) Except as provided in paragraph (2), no person who,
after October 1, 1955, has been adjudicated by a court of any state
to be a danger to others as a result of a mental disorder or mental
illness, or who has been adjudicated to be a mentally disordered sex
offender, shall purchase or receive, or attempt to purchase or
receive, or have in his or her possession, custody, or control any
firearm or any other deadly weapon unless there has been issued to
the person a certificate by the court of adjudication upon release
from treatment or at a later date stating that the person may possess
a firearm or any other deadly weapon without endangering others, and
the person has not, subsequent to the issuance of the certificate,
again been adjudicated by a court to be a danger to others as a
result of a mental disorder or mental illness.
(2) No person who, after January 1, 2014, has been adjudicated by
a court of any state to be a danger to others as a result of a mental
disorder or mental illness, or who has been adjudicated to be a
mentally disordered sex offender, shall purchase or receive, or
attempt to purchase or receive, or have in his or her possession,
custody, or control, any firearm or any other deadly weapon.
(3) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1) or (2). The court shall also notify the Department of
Justice of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18715, 18725, 18740, 18745, 18750, or
18755 of the Penal Code, or of a felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person, or a violation of the law of any other state or the
United States that includes all the elements of any of the above
felonies as defined under California law, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession
or under his or her custody or control any firearm or any other
deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control, any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism, shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control, any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the people of the
State of California have not met their burden pursuant to paragraph
(6).
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The people of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon showing
good cause, the district attorney shall be entitled to a continuance
not to exceed 14 days after the district attorney was notified of the
hearing date by the clerk of the court. If additional continuances
are granted, the total length of time for continuances shall not
exceed 60 days. The district attorney may notify the county mental
health director of the hearing who shall provide information about
the detention of the person that may be relevant to the court and
shall file that information with the superior court. That information
shall be disclosed to the person and to the district attorney. The
court, upon motion of the person subject to paragraph (1)
establishing that confidential information is likely to be discussed
during the hearing that would cause harm to the person, shall conduct
the hearing in camera with only the relevant parties present, unless
the court finds that the public interest would be better served by
conducting the hearing in public. Notwithstanding any other law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code shall be admissible at the
hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession, or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase, any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The people of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days
after the date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code or in a county jail
for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because 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.