CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 997

Introduced by Assembly Member Low

February 21, 2019

An act to amend Section 8102 of the Welfare and Institutions Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 997, as introduced, Low. Firearms: persons detained or apprehended for examination of mental condition.
Existing law requires a peace officer to confiscate the firearms or other deadly weapons of a person who has been detained or apprehended for examination of their mental condition who is found to own or have possession of a firearm or deadly weapon and to issue a receipt. Upon release of the person who was apprehended or detained for examination of their mental condition, existing law requires the confiscating law enforcement agency to initiate a petition in the superior court within 30 days for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others.
This bill would prohibit the person from possessing a firearm or deadly weapon pending the hearing and would prohibit the person from having possession of a firearm or deadly weapon for a period of 5 years if the court determines that the return of the firearm or other deadly weapons would likely endanger the person or others. The bill would make a violation of this prohibition a crime, punishable as a misdemeanor or a felony. By creating a new 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   Local Program: YES  

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


SECTION 1.

 Section 8102 of the Welfare and Institutions Code is amended to read:

8102.
 (a) (1) Whenever a person, who has been detained or apprehended for examination of his or her their mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her their possession or under his or her their control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any a law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.

“Deadly

(2) “Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100.
(b) (1) Upon confiscation of any a firearm or other deadly weapon from a person who has been detained or apprehended for examination of his or her their mental condition, the peace officer or law enforcement agency shall issue a receipt describing the deadly weapon or any firearm and listing any serial number or other identification on the firearm and shall notify the person of the procedure for the return, sale, transfer, or destruction of any firearm or other deadly weapon which has been confiscated. A peace officer or law enforcement agency that provides the receipt and notification described in Section 33800 of the Penal Code satisfies the receipt and notice requirements.
(2) If the person is released, the professional person in charge of the facility, or his or her the professional person’s designee, shall notify the person of the procedure for the return of any a firearm or other deadly weapon which may have been confiscated.
(3) Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any a confiscated firearm.
(4) For purposes of this subdivision, the procedure for the return, sale, or transfer of confiscated firearms includes the procedures described in this section and the procedures described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.
(5) In lieu of destroying a firearm that has been confiscated pursuant to this section that is a nuisance, unclaimed, abandoned, or otherwise subject to destruction, a law enforcement agency may retain or transfer the firearm as provided in Section 34005 of the Penal Code.
(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of his or her the right to a hearing on this issue. The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition shall be filed within 60 days of the release of the person from a health facility.
(d) If the law enforcement agency does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return upon compliance with all applicable requirements, including the requirements specified in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.
(e) The law enforcement agency shall inform the person that he or she the person has 30 days to respond to the court clerk to confirm his or her their desire for a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For a confiscated firearm, the period of forfeiture is 180 days pursuant to Section 33875 of the Penal Code, unless the person contacts the law enforcement agency to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.
(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.
(g) If the person does not respond within 30 days of the notice, the law enforcement agency may file a petition for order of default, allowing the law enforcement agency to destroy the firearm in 180 days from the date the court enters default unless the person contacts the law enforcement agency to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code.
(h) If, after a hearing, the court determines that the return of the firearm or other deadly weapon would likely endanger the person or others, the law enforcement agency may destroy the firearm within 180 days from the date that the court makes that determination, unless the person contacts the law enforcement agency to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code.
(i) (1) Pending the hearing specified in subdivision (c), the person shall not have in their possession or under their control, or purchase or receive, a firearm or other deadly weapon. If, after a hearing, the court determines that the return of the firearm or other deadly weapon would likely endanger the person or others, the person shall not have in their possession or under their control, or purchase or receive, a firearm or other deadly weapon for a period of five years.
(2) A person who owns or possesses or has under their custody or control, or purchases or receives, or attempts to purchase or receive, a firearm or other deadly weapon in violation of this subdivision 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.

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.