Amended  IN  Assembly  March 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 732

Introduced by Assembly Member Mike Fong

February 13, 2023

An act to amend Section 19 of 29810 of, and to add Section 29813 to, the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 732, as amended, Mike Fong. Crimes: punishment for misdemeanors. relinquishment of firearms.
Existing law prohibits a person who has been convicted of a felony or of specified misdemeanors from owning, purchasing, receiving, or possessing a firearm for specified periods of time. Existing law, as enacted by the Safety for All Act of 2016, an initiative statute approved by voters as Proposition 63 at the November 8, 2016, statewide general election, requires any defendant subject to this prohibition to relinquish any firearm that they own or possess within 5 days of conviction if not in custody after a conviction, as specified, and provides a procedure for the verification and enforcement of this requirement. Existing law also requires that, if the defendant is in custody following a conviction, the defendant must relinquish any firearms within 14 days, as specified. Existing law also authorizes the court to shorten or enlarge the time period for relinquishment of a firearm with good cause.
Proposition 63 allows its provisions to be amended by a vote of 55% of the Legislature so long as the amendments are consistent with, and further the intent of, the act.
This bill would amend Proposition 63 by requiring a defendant not in custody to relinquish their firearms within 48 hours.
Existing law requires a court to assign a probation officer when a defendant is convicted of a crime that would prohibit them from owning, purchasing, receiving, or possessing a firearm. Existing law requires the assigned probation officer to, prior to the final disposition or sentencing in the case, report to the court whether the defendant complied with the requirement to relinquish their firearms and file the proper paperwork providing proof of relinquishment. Existing law also requires that the court make findings on whether the probation officer’s report indicates compliance by the defendant. If the court finds probable cause that the defendant failed to relinquish their firearms, existing law authorizes the court to order for the search and removal of any firearms at any location where the judge has probable cause to believe the firearms are located.
This bill would require the probation officer to also provide their report on defendant compliance to the prosecuting attorney. The bill would also require the court to, upon receipt of the report, immediately order for the search and removal of any firearms if the court finds probable cause that the defendant failed to relinquish their firearms, as specified, or to extend the time for providing proof of relinquishment to 14 days for good cause. The bill would further require the court to refer the matter to the prosecuting attorney and set a status review within 14 days if it finds that additional investigation is needed. By placing additional requirements on county probation officers, this bill would impose a state-mandated local program.
Existing law requires a law enforcement agency to retain a firearm relinquished by a defendant after a conviction of an offense that would prohibit them from owning a firearm for 30 days. Once the 30-day period expires, existing law authorizes the agency to destroy, retain, sell, or transfer the firearm, except as specified.
This bill would remove the authorization for the law enforcement agency to sell the relinquished firearm.
Existing law requires the Attorney General to establish and maintain an online database known as the Prohibited Armed Persons File, also referred to as the Armed Prohibited Persons System (APPS), to cross-reference persons who have ownership or possession of a firearm 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.
This bill would require the Department of Justice to provide local law enforcement agencies and the district attorney a monthly report of individuals residing in their jurisdiction listed in the APPS who have not provided proof of relinquishment of firearms registered in their name. The bill would require each local agency to designate a person to access or receive the information and would require the agency to report to the department the steps taken to verify the individual is no longer in possession of the registered firearm. By increasing duties on local law enforcement, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Under existing law, any offense declared to be a misdemeanor for which no punishment is specified is punishable by imprisonment in the county jail not to exceed six months, by a fine not to exceed $1,000, or by both that fine and imprisonment.

This bill would make a technical, nonsubstantive change to that provision.

Vote: MAJORITY55%   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Research shows that quickly removing firearms from individuals who are prohibited from owning them reduces violence.
(b) Current law requires that, at the time a person is convicted of a new offense that prohibits firearm ownership, steps shall be taken to determine whether the person has a firearm registered in their name, and if so, to ensure relinquishment of all firearms.
(c) Despite this, the Department of Justice reports that each year, approximately 5,000 people are added to the Armed Prohibited Persons System as a result of a new criminal conviction. Each of these individuals is prohibited from owning a firearm as a result of conviction yet continues to have a firearm registered in their name.
(d) It is the intent of the Legislature that every person convicted of an offense that prohibits firearm ownership shall in fact relinquish all firearms at the time of conviction. It is the further intent of the Legislature that prosecuting attorneys and courts shall ensure relinquishment of firearms prior to the final disposition of a criminal case.

SEC. 2.

 Section 29810 of the Penal Code is amended to read:

29810.
 (a) (1) Upon conviction of any offense that renders a person subject to Section 29800 or Section 29805, the person shall relinquish all firearms he or she owns, possesses, or has under his or her they own, possess, or have under their custody or control in the manner provided in this section. section within 48 hours of the conviction if the defendant remains out of custody or within 14 days of the conviction if the defendant is in custody.
(2) The court shall, upon conviction of a defendant for an offense described in subdivision (a), instruct the defendant that he or she is they are prohibited from owning, purchasing, receiving, possessing, or having under his or her their custody or control, any firearms, ammunition, and ammunition feeding devices, including but not limited to magazines, and shall order the defendant to relinquish all firearms in the manner provided in this section. The court shall also provide the defendant with a Prohibited Persons Relinquishment Form developed by the Department of Justice.
(3) Using the Prohibited Persons Relinquishment Form, the defendant shall name a designee and grant the designee power of attorney for the purpose of transferring or disposing of any firearms. The designee shall be either a local law enforcement agency or a consenting third party who is not prohibited from possessing firearms under state or federal law. The designee shall, within the time periods specified in subdivisions (d) and (e), surrender the firearms to the control of a local law enforcement agency, sell the firearms to a licensed firearms dealer, or transfer the firearms for storage to a firearms dealer pursuant to Section 29830.
(b) The Prohibited Persons Relinquishment Form shall do all of the following:
(1) Inform the defendant that he or she is they are prohibited from owning, purchasing, receiving, possessing, or having under his or her their custody or control, any firearms, ammunition, and ammunition feeding devices, including but not limited to magazines, and that he or she they shall relinquish all firearms through a designee within the time periods set forth in subdivision (d) or (e) by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830.
(2) Inform the defendant that any cohabitant of the defendant who owns firearms must store those firearms in accordance with Section 25135.
(3) Require the defendant to declare any firearms that he or she they owned, possessed, or had under his or her their custody or control at the time of his or her their conviction, and require the defendant to describe the firearms and provide all reasonably available information about the location of the firearms to enable a designee or law enforcement officials to locate the firearms.
(4) Require the defendant to name a designee, if the defendant declares that he or she they owned, possessed, or had under his or her their custody or control any firearms at the time of his or her their conviction, and grant the designee power of attorney for the purpose of transferring or disposing of all firearms.
(5) Require the designee to indicate his or her their consent to the designation and, except a designee that is a law enforcement agency, to declare under penalty of perjury that he or she is they are not prohibited from possessing any firearms under state or federal law.
(6) Require the designee to state the date each firearm was relinquished and the name of the party to whom it was relinquished, and to attach receipts from the law enforcement officer or licensed firearms dealer who took possession of the relinquished firearms.
(7) Inform the defendant and the designee of the obligation to submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer within the time periods specified in subdivisions (d) and (e).
(c) (1) When a defendant is convicted of an offense described in subdivision (a), the court shall immediately assign the matter to a probation officer to investigate whether the Automated Firearms System or other credible information, such as a police report, reveals that the defendant owns, possesses, or has under his or her their custody or control any firearms. The assigned probation officer shall receive the Prohibited Persons Relinquishment Form from the defendant or the defendant’s designee, as applicable, and ensure that the Automated Firearms System has been properly updated to indicate that the defendant has relinquished those firearms.
(2) Prior to final disposition or sentencing in the case, the assigned probation officer shall report to the court and the prosecuting attorney whether the defendant has properly complied with the requirements of this section by relinquishing all firearms identified by the probation officer’s investigation or declared by the defendant on the Prohibited Persons Relinquishment Form, and by timely submitting a completed Prohibited Persons Relinquishment Form. The probation officer shall also report to the Department of Justice on a form to be developed by the department whether the Automated Firearms System has been updated to indicate which firearms have been relinquished by the defendant.
(3) If the report of the probation officer does not confirm relinquishment of firearms registered in the defendant’s name, the court shall take one of the following actions:
(A) If the court finds probable cause that the defendant has failed to relinquish any firearms as required, immediately upon receipt of the probation officer’s report, the court shall order the search for, and removal of, any firearms at any location where the judge has probable cause to believe the defendant’s firearms are located. The court shall state with specificity the reasons for, and scope of, the search and seizure authorized by the order. The court shall set a court date to ensure the warrant has been executed and to review the results of the search. The search warrant shall be executed within 72 hours of issuance.
(B) If the court finds good cause to extend the time for providing proof of relinquishment, the court shall set a court date within 14 days for the defendant to provide proof of relinquishment.
(C) If the court finds additional investigation is needed, the court shall refer the matter to the prosecuting attorney and set a court date within 14 days for status review.

(3)

(4) Prior to final disposition or sentencing in the case, the court shall make findings concerning whether the probation officer’s report indicates confirm that the defendant has relinquished all firearms as required, and whether that the court has received a completed Prohibited Persons Relinquishment Form, along with the receipts described in paragraph (1) of subdivision (d) or paragraph (1) of subdivision (e). The court shall ensure that these findings are included in the abstract of judgment. If necessary to avoid a delay in sentencing, the court may make and enter these findings within 14 days of sentencing.

(4)If the court finds probable cause that the defendant has failed to relinquish any firearms as required, the court shall order the search for and removal of any firearms at any location where the judge has probable cause to believe the defendant’s firearms are located. The court shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

(5) Failure by a defendant to timely file the completed Prohibited Persons Relinquishment Form with the assigned probation officer shall constitute an infraction punishable by a fine not exceeding one hundred dollars ($100).
(d) The following procedures shall apply to any defendant who is a prohibited person within the meaning of paragraph (1) of subdivision (a) who does not remain in custody at any time within the five-day 48-hour period following conviction:
(1) The designee shall dispose of any firearms the defendant owns, possesses, or has under his or her their custody or control within five days 48 hours of the conviction by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830, in accordance with the wishes of the defendant. Any proceeds from the sale of the firearms shall become the property of the defendant. The law enforcement officer or licensed dealer taking possession of any firearms pursuant to this subdivision shall issue a receipt to the designee describing the firearms and listing any serial number or other identification on the firearms at the time of surrender.
(2) If the defendant owns, possesses, or has under his or her their custody or control any firearms to relinquish, the defendant’s designee shall submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer within five days 48 hours following the conviction, along with the receipts described in paragraph (1) of subdivision (d) showing the defendant’s firearms were surrendered to a local law enforcement agency or sold or transferred to a licensed firearms dealer.
(3) If the defendant does not own, possess, or have under his or her their custody or control any firearms to relinquish, he or she they shall, within five days 48 hours following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that he or she has they have no firearms to be relinquished.
(e) The following procedures shall apply to any defendant who is a prohibited person within the meaning of paragraph (1) of subdivision (a) who is in custody at any point within the five-day 48-hour period following conviction:
(1) The designee shall dispose of any firearms the defendant owns, possesses, or has under his or her their custody or control within 14 days of the conviction by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830, in accordance with the wishes of the defendant. Any proceeds from the sale of the firearms shall become the property of the defendant. The law enforcement officer or licensed dealer taking possession of any firearms pursuant to this subdivision shall issue a receipt to the designee describing the firearms and listing any serial number or other identification on the firearms at the time of surrender.
(2) If the defendant owns, possesses, or has under his or her their custody or control any firearms to relinquish, the defendant’s designee shall submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, within 14 days following conviction, along with the receipts described in paragraph (1) of subdivision (e) showing the defendant’s firearms were surrendered to a local law enforcement agency or sold or transferred to a licensed firearms dealer.
(3) If the defendant does not own, possess, or have under his or her their custody or control any firearms to relinquish, he or she they shall, within 14 days following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that he or she has they have no firearms to be relinquished.
(4) If the defendant is released from custody during the 14 days following conviction and a designee has not yet taken temporary possession of each firearm to be relinquished as described above, the defendant shall, within five days following his or her their release, relinquish each firearm required to be relinquished pursuant to paragraph (1) of subdivision (d).
(f) For good cause, the court may shorten or enlarge the time periods specified in subdivisions (d) and (e), enlarge the time period specified in paragraph (3) of subdivision (c), or allow an alternative method of relinquishment.
(g) The defendant shall not be subject to prosecution for unlawful possession of any firearms declared on the Prohibited Persons Relinquishment Form if the firearms are relinquished as required.
(h) Any firearms that would otherwise be subject to relinquishment by a defendant under this section, but which are lawfully owned by a cohabitant of the defendant, shall be exempt from relinquishment, provided the defendant is notified that the cohabitant must store the firearm in accordance with Section 25135.
(i) A law enforcement agency shall update the Automated Firearms System to reflect any firearms that were relinquished to the agency pursuant to this section. A law enforcement agency shall retain a firearm that was relinquished to the agency pursuant to this section for 30 days after the date the firearm was relinquished. After the 30-day period has expired, the firearm is subject to destruction, retention, sale or other transfer by the agency, except upon the certificate of a judge of a court of record, or of the district attorney of the county, that the retention of the firearm is necessary or proper to the ends of justice, or if the defendant provides written notice of an intent to appeal a conviction for an offense described in subdivision (a), or if the Automated Firearms System indicates that the firearm was reported lost or stolen by the lawful owner. If the firearm was reported lost or stolen, the firearm shall be restored to the lawful owner, as soon as its use as evidence has been served, upon the lawful owner’s identification of the weapon and proof of ownership, and after the law enforcement agency has complied with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4. The agency shall notify the Department of Justice of the disposition of relinquished firearms pursuant to Section 34010.
(j) A city, county, or city and county, or a state agency may adopt a regulation, ordinance, or resolution imposing a charge equal to its administrative costs relating to the seizure, impounding, storage, or release of a firearm pursuant to Section 33880.

(k)This section shall become operative on January 1, 2018.

SEC. 3.

 Section 29813 is added to the Penal Code, to read:

29813.
 The Department of Justice shall provide local law enforcement agencies and the district attorney a monthly report regarding individuals residing in their jurisdiction listed in the Armed Prohibited Persons System who have not provided proof of relinquishment of firearms registered in their name. Each local law enforcement agency shall designate a person to access or receive the information and shall report to the Department of Justice quarterly regarding steps taken to verify that the individuals are no longer in possession of firearms. Law enforcement agencies operating in the same jurisdiction may agree to designate one lead agency for their jurisdiction to report on the steps taken to verify individuals are no longer in possession of firearms.

SEC. 4.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 19 of the Penal Code is amended to read:
19.

Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding 6 months, or by fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.