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SB-746 Firearms and ammunition: prohibited possession: transfer to licensed dealer.(2017-2018)

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Date Published: 06/15/2018 04:00 AM
SB746:v95#DOCUMENT

Amended  IN  Assembly  June 14, 2018
Amended  IN  Assembly  May 22, 2018
Amended  IN  Assembly  April 30, 2018
Amended  IN  Senate  January 03, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 746


Introduced by Senator Portantino

February 17, 2017


An act to amend Sections 16150, 26720, 29830, 33850, 33855, 33860, 33865, 33870, 33875, 33880, 33885, and 33895 of the Penal Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


SB 746, as amended, Portantino. Firearms and ammunition: prohibited possession: transfer to licensed dealer.
(1) Existing law prohibits a person who has been convicted of, or has an outstanding warrant for, a felony, or who is addicted to the use of any narcotic drug, from owning, purchasing, receiving, or possessing a firearm. Existing law prohibits a person who has been convicted of, or has an outstanding warrant for, certain misdemeanors, from owning, purchasing, receiving, or possessing a firearm, as specified. Existing law requires a person who is convicted of any of the above-described offenses to relinquish his or her firearms through the use of a designee, as specified. Existing law requires the designee to 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, as specified. Existing law generally allows any person who is prohibited from owning or possessing a firearm or ammunition to transfer his or her firearms or ammunition to a licensed firearms dealer for storage during the duration of the prohibition, as specified by court order. Existing law prescribes the procedure for a court or law enforcement agency in possession of a seized firearm to return the firearm to its lawful owner, as specified.
This bill would additionally authorize a person who has an outstanding warrant for a felony or misdemeanor, as described above, to transfer his or her firearms or ammunition to a licensed firearms dealer for the duration of the prohibition, as specified. The bill would make the procedure for a court or law enforcement agency to return a seized firearm applicable to ammunition. By increasing the duties of local law enforcement agencies, this bill would create a state-mandated local program. The bill makes other conforming changes.
(2) Existing law authorizes the licensing authority of a city, county, or a city and county to grant licenses to sell firearms at retail within the city, county, or city and county. Existing law requires the Department of Justice to maintain a list of licensed firearms dealers. Existing law authorizes the department to inspect dealers to ensure compliance with specified provisions of firearms law and to assess an annual fee to cover the reasonable costs of maintaining the dealer list and conducting inspections. Existing law exempts a dealer located in a jurisdiction that has adopted an inspection program to ensure compliance with firearms law from that portion of the department’s fee that relates to the cost of inspections.
This bill would require the department to conduct inspections of dealers at least every 3 years, with the exception of a dealer whose place of business is located in a jurisdiction that has adopted an inspection program. The bill would authorize the department to inspect a dealer whose place of business is located in a jurisdiction that has adopted an inspection program.
(3) 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 The Legislature hereby finds and declares both of the following:
(a) The intent expressed in the Safety for All Act of 2016 is to safeguard the ability of law-abiding, responsible Californians to own and use firearms for lawful means while requiring background checks for ammunition purchases in the manner required for firearm purchases so that neither firearms nor ammunition get into the hands of dangerous individuals.
(b) Insofar as this act amends the Safety for All Act of 2016, the amendments made by this act are consistent with and further that intent. The amendments ensure that ammunition and ammunition feeding devices in the possession of a court or law enforcement agency will only be transferred to a third party after that party undergoes a background check to determine that he or she is not prohibited from acquiring or having ammunition or ammunition feeding devices with appropriate records maintained of the transfer.

SEC. 2.

 Section 16150 of the Penal Code is amended to read:

16150.
 (a) As used in this part, except in subdivision (a) of Section 30305 and in Section 30306, “ammunition” means one or more loaded cartridges consisting of a primed case, propellant, and with one or more projectiles. “Ammunition” does not include blanks.
(b) As used in subdivision (a) of Section 30305 and in Section 30306, “ammunition” includes, but is not limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, ammunition feeding device, or projectile capable of being fired from a firearm with a deadly consequence. “Ammunition” does not include blanks.

SEC. 3.

 Section 26720 of the Penal Code is amended to read:

26720.
 (a) Except for a dealer specified in subdivision (c), the Department of Justice shall conduct inspections of dealers at least every three years to ensure compliance with the provisions listed in Section 16575.
(b) The department may assess an annual fee, not to exceed one hundred fifteen dollars ($115), to cover the reasonable cost of maintaining the list described in Section 26715, including the cost of inspections.
(c) A dealer whose place of business is located in a jurisdiction that has adopted an inspection program to ensure compliance with firearms law is exempt from that portion of the department’s fee that relates to the cost of inspections. The applicant is responsible for providing evidence to the department that the jurisdiction in which the business is located has the inspection program. The department may inspect a dealer who is exempt from mandatory inspections under subdivision (a) to ensure compliance with the provisions listed in Section 16575.

SEC. 4.

 Section 29830 of the Penal Code is amended to read:

29830.
 (a) A person who is prohibited from owning or possessing a firearm, ammunition feeding device, or ammunition pursuant to any law, may transfer or cause to be transferred, any firearm, ammunition feeding device, or ammunition in his or her possession, or of which he or she is the owner, to a firearms dealer or licensed pursuant to Sections 26700 to 26915, inclusive, or may transfer ammunition to an ammunition vendor, as applicable, licensed pursuant to Section 26700 to 26915, inclusive, or Section Sections 30385 to 30395, inclusive, for storage during the duration of the prohibition, if the prohibition on owning or possessing the firearm, ammunition feeding device, or ammunition will expire on a specific ascertainable date, whether or not specified in the court order, or pursuant to Section 29800, 29805, or 29810.
(b) A firearms dealer or ammunition vendor who stores a firearm, ammunition feeding device, or ammunition pursuant to subdivision (a), may charge the owner a reasonable fee for the storage of the firearm, ammunition feeding device, or ammunition.
(c) A firearms dealer or ammunition vendor who stores a firearm, ammunition feeding device, or ammunition pursuant to subdivision (a) shall notify the Department of Justice of the date that the firearms dealer or ammunition vendor has taken possession of the firearm, ammunition feeding device, or ammunition.
(d) Any firearm that is returned by a dealer to the owner of the firearm pursuant to this section shall be returned in accordance with the procedures set forth in Section 27540 and Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2 of Division 6.
(e) Any ammunition that is returned by a firearms dealer or ammunition vendor to the owner of the ammunition pursuant to this section shall be returned in accordance with the procedures set forth in Article 4 (commencing with Section 30370) of Chapter 1 of Division 10.

SEC. 5.

 Section 33850 of the Penal Code is amended to read:

33850.
 (a) Any person who claims title to any firearm, ammunition feeding device, or ammunition that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm, ammunition feeding device, or ammunition returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition. The application shall be submitted electronically via the California Firearms Application Reporting System (CFARS) and shall include the following:
(1) The applicant’s name, date and place of birth, gender, telephone number, and complete address.
(2) Whether the applicant is a United States citizen. If the applicant is not a United States citizen, the application shall also include the applicant’s country of citizenship and the applicant’s alien registration or I-94 number.
(3) If the seized property is a firearm, the firearm’s make, model, caliber, barrel length, type, country of origin, and serial number, provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, there shall be a place on the application to note that fact.
(4) For residents of California, the applicant’s valid California driver’s license number or valid California identification card number issued by the Department of Motor Vehicles. For nonresidents of California, a copy of the applicant’s military identification with orders indicating that the individual is stationed in California, or a copy of the applicant’s valid driver’s license from the applicant’s state of residence, or a copy of the applicant’s state identification card from the applicant’s state of residence. Copies of the documents provided by non-California residents shall be notarized.
(5) The name of the court or law enforcement agency holding the firearm, ammunition feeding device, or ammunition.
(6) The signature of the applicant and the date of signature.
(7) Any person furnishing a fictitious name or address or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4), shall be guilty of a misdemeanor.
(b) A person who owns a firearm that is in the custody of a court or law enforcement agency and who does not wish to obtain possession of the firearm, and the firearm is an otherwise legal firearm, and the person otherwise has right to title of the firearm, shall be entitled to sell or transfer title of the firearm to a licensed dealer or a third party that is not prohibited from possessing that firearm. Any sale or transfer to a third party pursuant to this subdivision shall be conducted pursuant to Section 27545.
(c) A person who owns an ammunition feeding device or ammunition that is in the custody of a court or a law enforcement agency and who does not wish to obtain possession of the ammunition or ammunition feeding device, and the ammunition feeding device or ammunition is otherwise legal, shall be entitled to sell or otherwise transfer the ammunition feeding device or ammunition to a licensed firearm dealer or ammunition vendor or a third party that is not prohibited from possessing that ammunition feeding device or ammunition. Any sale or other transfer of ammunition to a third party pursuant to subdivision (b) shall be conducted through an ammunition vendor in accordance with the procedures set forth in Article 4 (commencing with Section 30370) of Chapter 1 of Division 10.
(d) Any person furnishing a fictitious name or address, or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4) of subdivision (a), is punishable as a misdemeanor.

SEC. 6.

 Section 33855 of the Penal Code is amended to read:

33855.
 A law enforcement agency or court that has taken custody of any firearm, ammunition feeding device, or ammunition shall not return the firearm, ammunition feeding device, or ammunition to any individual unless all of the following requirements are satisfied:
(a) The individual presents to the agency or court notification of a determination by the department pursuant to Section 33865 that the person is eligible to possess a firearm, ammunition feeding device, or ammunition.
(b) If the seized property is a firearm and the agency or court has direct access to the Automated Firearms System, the agency or court has verified that the firearm is not listed as stolen pursuant to Section 11108, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.
(c) If the firearm has been reported lost or stolen pursuant to Section 11108, a law enforcement agency shall notify the owner or person entitled to possession pursuant to Section 11108.5. However, that person shall provide proof of eligibility to possess a firearm pursuant to Section 33865.
(d) This section does not prevent the local law enforcement agency from charging the rightful owner or person entitled to possession of the firearm the fees described in Section 33880. However, an individual who is applying for a background check to retrieve a firearm that came into the custody or control of a court or law enforcement agency pursuant to Section 33850 shall be exempt from the fees in Section 33860, provided that the court or agency determines the firearm was reported stolen to a law enforcement agency prior to the date the firearm came into custody or control of the court or law enforcement agency, or within five business days of the firearm being stolen from its owner. The court or agency shall notify the Department of Justice of this fee exemption in a manner prescribed by the department.

SEC. 7.

 Section 33860 of the Penal Code is amended to read:

33860.
 (a) The Department of Justice shall establish a fee of twenty dollars ($20) per request for return of a firearm, ammunition feeding device, or any quantity of ammunition plus a three-dollar ($3) charge for each additional firearm being processed as part of the request to return a firearm, to cover its reasonable costs for processing applications submitted pursuant to this chapter.
(b) The fees collected pursuant to subdivision (a) shall be deposited into the Dealers’ Record of Sale Special Account.
(c) The department shall annually review and shall adjust the fees specified in subdivision (a), if necessary, to fully fund, but not to exceed the reasonable costs of processing applications pursuant to this section.

SEC. 8.

 Section 33865 of the Penal Code is amended to read:

33865.
 (a) When the Department of Justice receives a completed application pursuant to Section 33850 accompanied by the fee required pursuant to Section 33860, it shall conduct an eligibility check of the applicant to determine whether the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition.
(b) The department shall have 30 days from the date of receipt to complete the background check, unless the background check is delayed by circumstances beyond the control of the department. The applicant may contact the department via the California Firearms Application Reporting System (CFARS) to inquire about the reason for a delay.
(c) If the department determines that the applicant is eligible to possess the firearm, ammunition feeding device, or ammunition, the department shall provide the applicant with written notification that includes the following:
(1) The identity of the applicant.
(2) A statement that the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition.
(3) If applicable, a description of the firearm by make, model, and serial number, provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted.
(d) The department shall enter a record of the firearm into the Automated Firearms System (AFS), provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted in AFS.
(e) If the department denies the application, and the firearm is an otherwise legal firearm, the department shall notify the applicant of the denial and provide a form for the applicant to use to sell or transfer the firearm to a licensed dealer.
(f) If the department denies the application, the applicant shall receive notification via CFARS from the department explaining the reason for the denial and information regarding the appeal process.

SEC. 9.

 Section 33870 of the Penal Code is amended to read:

33870.
 (a) If a law enforcement agency determines that the applicant is the legal owner of any firearm ammunition feeding device, or ammunition deposited with the agency, that the applicant is prohibited from possessing any firearm, ammunition feeding device, or ammunition, and that the firearm, ammunition feeding device, or ammunition is otherwise legal, the applicant shall be entitled to sell or transfer the firearm, ammunition feeding device, or ammunition to a licensed firearms dealer, or licensed ammunition vendor, as applicable. If a law enforcement agency determines that the applicant is prohibited from owning or possessing any firearm, ammunition feeding device, or ammunition and the prohibition will expire on a specific ascertainable date, whether or not that date is specified in a court order, the applicant shall be entitled to have the firearm, ammunition feeding device, or ammunition stored by a licensed firearms dealer or licensed ammunition vendor, as applicable, for the duration of the prohibition period pursuant to Section 29830.
(b) If the firearm, ammunition feeding device, or ammunition has been lost or stolen, it shall be restored to the lawful owner pursuant to Section 11108.5 upon the owner’s identification of the property, proof of ownership, and proof of eligibility to possess a firearm, ammunition feeding device, or ammunition pursuant to Section 33865.
(c) This section does not prevent the local law enforcement agency from charging the rightful owner of the property the fees described in Section 33880.

SEC. 10.

 Section 33875 of the Penal Code is amended to read:

33875.
 Notwithstanding any other provision of law, no law enforcement agency or court shall be required to retain any firearm, ammunition feeding device, or ammunition for more than 180 days after the owner has been notified by the court or law enforcement agency that the property has been made available for return. An unclaimed firearm, ammunition feeding device, or ammunition may be disposed of after the 180-day period has expired.

SEC. 11.

 Section 33880 of the Penal Code is amended to read:

33880.
 (a) 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 any firearm, ammunition feeding device, or ammunition.
(b) The fee under subdivision (a) shall not exceed the actual costs incurred for the expenses directly related to taking possession of any firearm, ammunition feeding device, or ammunition, storing it, and surrendering possession of it to a licensed firearms dealer or to the owner.
(c) The administrative costs described in subdivisions (a) and (b) may be waived by the local or state agency upon verifiable proof that the firearm, ammunition feeding device, or ammunition was reported stolen at the time it came into the custody or control of the law enforcement agency.
(d) The following apply to any charges imposed for administrative costs pursuant to this section:
(1) The charges shall only be imposed on the person claiming title to the firearm, ammunition feeding device, or ammunition.
(2) Any charges shall be collected by the local or state authority only from the person claiming title to the firearm, ammunition feeding device, or ammunition.
(3) The charges shall be in addition to any other charges authorized or imposed pursuant to this code.
(4) A charge shall not be imposed for a hearing or appeal relating to the removal, impound, storage, or release of any firearm, ammunition feeding device, or ammunition, unless that hearing or appeal was requested in writing by the legal owner of the property. In addition, the charge may be imposed only upon the person requesting that hearing or appeal.
(e) Costs for a hearing or appeal related to the release of any firearm, ammunition feeding device, or ammunition shall not be charged to the legal owner who redeems the property, unless the legal owner voluntarily requests the poststorage hearing or appeal. A city, county, city and county, or state agency shall not require a legal owner to request a poststorage hearing as a requirement for release of the firearm, ammunition feeding device, or ammunition to the legal owner.

SEC. 12.

 Section 33885 of the Penal Code is amended to read:

33885.
 In a proceeding for the return of any firearm, ammunition feeding device, or ammunition seized and not returned pursuant to this chapter, where the defendant or cross-defendant is a law enforcement agency, the court shall award reasonable attorney’s fees to the prevailing party.

SEC. 13.

 Section 33895 of the Penal Code is amended to read:

33895.
 (a) Section 27545 does not apply to deliveries, transfers, or returns of firearms made pursuant to this chapter.
(b) Sections 30312 and 30342 do not apply to deliveries or transfers of returns of ammunition or ammunition feeding devices by a court or law enforcement agency made pursuant to this chapter.

SEC. 14.

 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.