CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 172

Introduced by Senator Portantino
(Principal coauthors: Assembly Members Bonta and Gabriel)
(Coauthor: Senator Wiener)

January 28, 2019

An act to amend Sections 16520, 17060, 25100, 25105, 25200, and 29805 of, and to add Sections 25145 and 27881 to, the Penal Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


SB 172, as introduced, Portantino. Firearms.
(1) Existing law generally regulates the possession of firearms, including storage requirements to prevent children from gaining access to firearms. Existing law, subject to exceptions, generally requires the loan of a firearm to be conducted by a firearms dealer.
This bill would prohibit a person who is 18 years of age or older and who is the owner, lessee, renter, or other legal occupant of a residence, while outside of that residence, from keeping in that residence a handgun that the person owns or a firearm that has been loaned to the person unless it is stored in one of certain specified ways, including in a gun safe or by using a firearm safety device. The bill would exempt an unloaded antique firearm from these provisions. A violation of these provisions would be an offense punishable as an infraction, or for subsequent violations, as an infraction or misdemeanor, as specified. The bill would authorize the loan of a firearm without a firearms dealer’s participation if the loan occurs at the lender’s real property, or residence, as defined, the firearm remains on the real property, and if other conditions are met. By creating a crime, this bill would impose a state-mandated local program.
(2) Under existing law a person commits the crime of criminal storage of a firearm if the person keeps a loaded firearm within a premises with knowledge that a child is likely to gain access to the firearm.
This bill would make the crime of criminal storage applicable to the storage of an unloaded firearm. The bill would make it a crime for a person who has been convicted of this crime to own a firearm for a period of 10 years. By expanding the application of a crime and creating a new crime, this bill would impose a state-mandated local program.
(3) Existing law makes it a crime to keep a handgun within a premise with knowledge that a child or person prohibited from possessing a firearm is likely to gain access if the child or prohibited person obtains access to the handgun and carries it off premises.
This bill would make this crime applicable to any firearm. The bill would make it a crime for a person who has been convicted of this crime to own a firearm for a period of 10 years. By expanding the application of a crime and creating a new crime, this bill would impose a state-mandated local program.
(4) Existing law makes it a crime for an owner or legal occupant of a residence to store a firearm in that residence if the person knows another person residing in that residence is prohibited from possessing a firearm unless the firearm is secured, as specified.
The bill would make it a crime for a person who has been convicted of this crime to own a firearm for a period of 10 years. By creating a new crime, this bill would impose a state-mandated local program.
(5) 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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 16520 of the Penal Code is amended to read:

16520.
 (a) As used in this part, “firearm” means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.
(b) As used in the following provisions, “firearm” includes the frame or receiver of the weapon:
(1) Section 16550.
(2) Section 16730.
(3) Section 16960.
(4) Section 16990.
(5) Section 17070.
(6) Section 17310.
(7) Sections 26500 to 26588, inclusive.
(8) Sections 26600 to 27140, inclusive.
(9) Sections 27400 to 28000, inclusive.
(10) Section 28100.
(11) Sections 28400 to 28415, inclusive.
(12) Sections 29010 to 29150, inclusive.
(13) Section 29180.
(14) Sections 29610 to 29750, inclusive.
(15) Sections 29800 to 29905, inclusive.
(16) Sections 30150 to 30165, inclusive.
(17) Section 31615.
(18) Sections 31705 to 31830, inclusive.
(19) Sections 34355 to 34370, inclusive.
(20) Sections 8100, 8101, and 8103 of the Welfare and Institutions Code.
(c) As used in the following provisions, “firearm” also includes a rocket, rocket propelled projectile launcher, or similar device containing an explosive or incendiary material, whether or not the device is designed for emergency or distress signaling purposes:
(1) Section 16750.
(2) Subdivision (b) of Section 16840.
(3) Section 25400.
(4) Sections 25850 to 26025, inclusive.
(5) Subdivisions (a), (b), and (c) of Section 26030.
(6) Sections 26035 to 26055, inclusive.
(d) As used in the following provisions, “firearm” does not include an unloaded antique firearm:
(1) Subdivisions (a) and (c) of Section 16730.
(2) Section 16550.
(3) Section 16960.
(4) Section 17310.
(5) Section 25135.
(6) Section 25145.

(5)

(7) Chapter 6 (commencing with Section 26350) of Division 5 of Title 4.

(6)

(8) Chapter 7 (commencing with Section 26400) of Division 5 of Title 4.

(7)

(9) Sections 26500 to 26588, inclusive.

(8)

(10) Sections 26700 to 26915, inclusive.

(9)

(11) Section 27510.

(10)

(12) Section 27530.

(11)

(13) Section 27540.

(12)

(14) Section 27545.

(13)

(15) Sections 27555 to 27585, inclusive.

(14)

(16) Sections 29010 to 29150, inclusive.

(15)Section 25135.

(16)

(17) Section 29180.
(e) As used in Sections 34005 and 34010, “firearm” does not include a destructive device.
(f) As used in Sections 17280 and 24680, “firearm” has the same meaning as in Section 922 of Title 18 of the United States Code.
(g) As used in Sections 29010 to 29150, inclusive, “firearm” includes the unfinished frame or receiver of a weapon that can be readily converted to the functional condition of a finished frame or receiver.

SEC. 2.

 Section 17060 of the Penal Code is amended to read:

17060.
 (a) As used in Section 25135, “residence” means any structure intended or used for human habitation, including, but not limited to, houses, condominiums, rooms, motels, hotels, time-shares, and recreational or other vehicles where human habitation occurs.
(b) As used in Section 25145, “residence” is the lawfully possessed dwelling unit in any structure intended or used for human habitation, including, but not limited to, houses, condominiums, rooms, motels, hotels, time-shares, and recreational and other vehicles where human habitation occurs. For purposes of Section 25145, “outside of that residence” means any distance beyond the boundary lines of the real property on which the structure is located, except in the case of recreational and other vehicles where human habitation occurs.

SEC. 3.

 Section 25100 of the Penal Code is amended to read:

25100.
 (a) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the first degree” if all of the following conditions are satisfied:
(1) The person keeps any loaded firearm within any premises that are under the person’s custody or control.
(2) The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.
(3) The child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person, or the person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law obtains access to the firearm and thereby causes death or great bodily injury to himself or herself themselves or any other person.
(b) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the second degree” if all of the following conditions are satisfied:
(1) The person keeps any loaded firearm within any premises that are under the person’s custody or control.
(2) The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.
(3) The child obtains access to the firearm and thereby causes injury, other than great bodily injury, to the child or any other person, or carries the firearm either to a public place or in violation of Section 417, or the person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law obtains access to the firearm and thereby causes injury, other than great bodily injury, to himself or herself themselves or any other person, or carries the firearm either to a public place or in violation of Section 417.
(c) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the third degree” if the person keeps any loaded firearm within any premises that are under the person’s custody or control and negligently stores or leaves a loaded firearm in a location where the person knows, or reasonably should know, that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian, unless reasonable action is taken by the person to secure the firearm against access by the child.

SEC. 4.

 Section 25105 of the Penal Code is amended to read:

25105.
 Section 25100 does not apply whenever any of the following occurs:
(a) The child obtains the firearm as a result of an illegal entry to any premises by any person.
(b) The firearm is kept in a locked container or in a location that a reasonable person would believe to be secure.
(c) The firearm is carried on the person or within close enough proximity thereto that the individual can readily retrieve and use the firearm as if carried on the person.
(d) The firearm is locked with a locking device, as defined in Section 16860, which has rendered the firearm inoperable.
(e) The person is a peace officer or a member of the Armed Forces or the National Guard and the child obtains the firearm during, or incidental to, the performance of the person’s duties.
(f) The child obtains, or obtains and discharges, the firearm in a lawful act of self-defense or defense of another person.
(g) The person who keeps a loaded firearm on premises that are under the person’s custody or control has no reasonable expectation, based on objective facts and circumstances, that a child is likely to be present on the premises.

SEC. 5.

 Section 25145 is added to the Penal Code, to read:

25145.
 (a) A person who is 18 years of age or older and who is the owner, lessee, renter, or other legal occupant of a residence, shall not, while outside of that residence, store in that residence a handgun that the person owns, unless it is stored in one of the following ways:
(1) The handgun is stored within a locked container.
(2) The handgun is disabled by a firearm safety device.
(3) The handgun is stored within a locked gun safe.
(4) The handgun is locked with a locking device as described in Section 16860, which has rendered the handgun inoperable.
(b) A person who is 18 years of age or older and who is the owner, lessee, renter, or other legal occupant of a residence, shall not, while outside of that residence, store in that residence a firearm that was lent to the person pursuant to an exemption from Section 27545 unless the firearm is stored in one of the following ways:
(1) The firearm is stored within a locked container.
(2) The firearm is disabled by a firearm safety device.
(3) The firearm is stored within a locked gun safe.
(4) The firearm is locked with a locking device as described in Section 16860, which has rendered the firearm inoperable.
(c) Subdivision (a) does not apply if a firearm is loaned to a person in accordance with an exemption from Section 27545.
(d) A violation of this section is punishable as follows:
(1) For a first violation, as an infraction, punishable by a fine not exceeding one hundred dollars ($100).
(2) For a second violation, as an infraction, punishable by a fine not exceeding one thousand dollars ($1,000).
(3) For a third or subsequent violation, as a misdemeanor.
(e) The prohibitions of this section are cumulative, and do not restrict the application of any other law. However, an act or omission punishable in different ways by different provisions of law shall not be punished under more than one provision.
(f) This section does not supersede any valid ordinance that regulates the storage of firearms in residences if the ordinance was in effect prior to January 1, 2020.

SEC. 6.

 Section 25200 of the Penal Code is amended to read:

25200.
 (a) If all of the following conditions are satisfied, a person shall be punished 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:
(1) The person keeps a pistol, revolver, or other firearm capable of being concealed upon the person, firearm, loaded or unloaded, within any premises that are under the person’s custody or control.
(2) The person knows or reasonably should know that a child is likely to gain access to that firearm without the permission of the child’s parent or legal guardian, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.
(3) The child or the prohibited person obtains access to that firearm and thereafter carries that firearm off-premises.
(b) If all of the following conditions are satisfied, a person shall be punished by imprisonment in a county jail not exceeding one year, by a fine not exceeding five thousand dollars ($5,000), or by both that imprisonment and fine:
(1) The person keeps any firearm within any premises that are under the person’s custody or control.
(2) The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.
(3) The child or the prohibited person obtains access to the firearm and thereafter carries that firearm off-premises to any public or private preschool, elementary school, middle school, high school, or to any school-sponsored event, activity, or performance, whether occurring on school grounds or elsewhere.
(c) A pistol, revolver, or other firearm capable of being concealed upon the person that firearm that a child or prohibited person gains access to and carries off-premises in violation of this section shall be deemed “used in the commission of any misdemeanor as provided in this code or any felony” for the purpose of Section 29300 regarding the authority to confiscate firearms and other deadly weapons as a nuisance.
(d) As used in this section, “off-premises” means premises other than the premises where the firearm was stored.

SEC. 7.

 Section 27881 is added to the Penal Code, to read:

27881.
 Section 27545 does not apply to the loan of a firearm if all of the following conditions are met:
(a) If the firearm being loaned is a handgun, the handgun is registered to the person making the loan pursuant to Section 11106.
(b) The loan occurs within the lender’s place of residence or other real property, except for property that is zoned for commercial, retail, or industrial activity.
(c) The individual receiving the firearm is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
(d) The individual receiving the firearm is 18 years of age or older.
(e) The firearm does not leave the real property upon which the loan occurs.

SEC. 8.

 Section 29805 of the Penal Code is amended to read:

29805.
 (a) Except as provided in Section 29855, subdivision (a) of Section 29800, or subdivision (b), any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, subdivision (f) of Section 148.5, Section 171b, paragraph (1) of subdivision (a) of Section 171c, Section 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, 422.6, 626.9, 646.9, 830.95, 17500, 17510, 25300, 25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, or Section 27510, 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, Section 490.2 if the property taken was a firearm, or of the conduct punished in subdivision (c) of Section 27590, and who, within 10 years of the conviction, or if the individual has an outstanding warrant, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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.
(b) Any person who is convicted, on or after January 1, 2019, of a misdemeanor violation of Section 273.5, and who subsequently owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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.
(c) Except as provided in Section 29855, any person who is convicted on or after January 1, 2020, of a misdemeanor violation of Section 25100, 25135, or 25200, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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 fine and imprisonment.

(c)

(d) The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.

SEC. 9.

 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.