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AB-12 Firearms: gun violence restraining orders.(2019-2020)

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Date Published: 03/13/2019 09:00 PM
AB12:v97#DOCUMENT

Amended  IN  Assembly  March 13, 2019
Amended  IN  Assembly  February 15, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 12


Introduced by Assembly Member Irwin

December 03, 2018


An act to amend Sections 1524, 18120, 18160, 18170, 18175, 18180, 18185, 18190, and 18197 of the Penal Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 12, as amended, Irwin. Firearms: gun violence restraining orders.
Existing law authorizes an immediate family member of a person or a law enforcement officer to request that a court, after notice and a hearing, issue a gun violence restraining order against that person. Under existing law, the petitioner has the burden of proving, by clear and convincing evidence, that the subject of the petition poses a significant danger of causing personal injury and that the order is necessary to prevent personal injury, as specified. Existing law prohibits a person subject to a gun restraining order from having in the person’s custody or control, or owning, purchasing, possessing, or receiving, any firearms or ammunition while that order is in effect. Under existing law, a gun violence restraining order and a renewal gun violence restraining order have a duration of one year, subject to earlier termination or renewal by the court.
This bill would increase change the duration of the gun violence restraining order and the renewal of the gun violence restraining order to from one year to a period of time between one to 5 years, subject to earlier termination or renewal by the court. The bill would require a court, in determining the duration of the gun violence restraining order, to consider the length of time that the threat of personal injury is likely to continue, and to issue the order based on that determination.
Existing law authorizes a person subject to a gun violence restraining order to submit one written request during the effective period of the order for a hearing to terminate the order. Existing law requires the gun violence restraining order to contain a statement advising the restrained person of that hearing right and also requires the court issuing the restraining order to inform the restrained person of that right.
This bill would instead authorize a person subject to a gun violence restraining order to submit one written request per year for a hearing to terminate the restraining order. The bill would make conforming changes and other technical changes.

Existing law allows a search warrant to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law specifies the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order if the person has been lawfully served with that order and has failed to relinquish the firearm as required by law.

This bill would remove the requirements that a person has been lawfully served with the gun violence restraining order and has failed to relinquish the firearm, prior to that search warrant being issued.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 1524 of the Penal Code is amended to read:

1524.
 (a) A search warrant may be issued upon any of the following grounds:
(1) If the property was stolen or embezzled.
(2) If the property or things were used as the means of committing a felony.
(3) If the property or things are in the possession of any a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom the person may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4) If the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5) If the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6) If there is a warrant to arrest a person.
(7) If a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any a person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom the person may have delivered them for the purpose of concealing them or preventing their discovery.
(8) If the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9) If the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10) If the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11) If the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12) If the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13) If a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14) If the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6. 6, and the court conditions the execution of the search warrant on the person being lawfully served with the gun violence restraining order and the person fails to relinquish the firearms or ammunition as required by law.
(15) Beginning January 1, 2018, if the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16) If the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17) (A) If all of the following apply:
(i) A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii) The person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii) The sample will be drawn from the person in a reasonable, medically approved manner.
(B) This paragraph does not abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18) If the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring.
(b) The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), a search warrant shall not be issued for any documentary evidence in the possession or under the control of any a person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1) At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2) (A) If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B) At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C) If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d) (1) As used in this section, a “special master” is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2) If the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e) A search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or the party’s designee to accompany the special master as the special master conducts the search. However, that party or the party’s designee may not participate in the search nor shall the party examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, “documentary evidence” includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, x-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g) A warrant shall not be issued for any item or items described in Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, a claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall not be sustained if there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i) This section does not limit an attorney’s ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, if the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k) This section does not create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.

SEC. 2.

 Section 18120 of the Penal Code is amended to read:

18120.
 (a) A person subject to a gun violence restraining order issued pursuant to this division shall not have in the person’s custody or control, own, purchase, possess, or receive any firearms or ammunition while that order is in effect.
(b) (1) Upon issuance of a gun violence restraining order issued pursuant to this division, the court shall order the restrained person to surrender all firearms and ammunition in the restrained person’s custody or control, or which the restrained person possesses or owns pursuant to paragraph (2). this subdivision.
(2) The surrender ordered pursuant to paragraph (1) shall occur by immediately surrendering all firearms and ammunition in a safe manner, upon request of a law enforcement officer, to the control of the officer, after being served with the restraining order. A law enforcement officer serving a gun violence restraining order that indicates that the restrained person possesses any firearms or ammunition shall request enforcement agency or sold or transferred to a licensed firearms dealer. Failure to timely file a receipt shall constitute a violation of the restraining order.
(B) File a copy of the receipt described in subparagraph (A) with the law enforcement agency, if any, that served the gun violence restraining order. Failure to timely file a copy of the receipt shall constitute a violation of the restraining order.
(c) (1) Except as provided in paragraph (2), any firearms or ammunition surrendered to a law enforcement officer or law enforcement agency pursuant to this section shall be retained by the law enforcement agency until the expiration of any a gun violence restraining order that has been issued against the restrained person. Upon expiration of any an order, any the firearms or ammunition shall be returned to the restrained person in accordance with the provisions of Chapter 2 (commencing with Section 33850) of Division 11 of Title 4. Firearms or ammunition that are not claimed are subject to the requirements of Section 34000.
(2) A restrained person who owns any firearms or ammunition that are in the custody of a law enforcement agency pursuant to this section is entitled to sell any the firearms or ammunition to a licensed firearms dealer or transfer any the firearms or ammunition to a licensed firearms dealer in accordance with Section 29830 if the firearm or firearms or ammunition are otherwise legal to own or possess and the restrained person otherwise has right to title of the firearm or firearms or ammunition.
(d) If a person other than the restrained person claims title to any firearms or ammunition surrendered pursuant to this section, and the person is determined by the law enforcement agency to be the lawful owner of the firearm or firearms or ammunition, the firearm or firearms or ammunition shall be returned to that person pursuant to Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.
(e) Within one business day of receiving the receipt referred to in paragraph (4) of subdivision (b), the court that issued the order shall transmit a copy of the receipt to the Department of Justice in a manner and pursuant to a process prescribed by the department.

SEC. 3.

 Section 18160 of the Penal Code is amended to read:

18160.
 (a) An ex parte gun violence restraining order issued under this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the order.
(2) The date and time the order expires.
(3) The address of the superior court in which any a responsive pleading should be filed.
(4) The date and time of the scheduled hearing.
(5) The following statement:

“To the restrained person: This order is valid until the expiration date and time noted above. You are required to surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code and you may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive any firearm, ammunition, or magazine while this order is in effect. A hearing will be held on the date and at the time noted above to determine if a more permanent gun violence restraining order should be issued. Failure to appear at that hearing may result in a court making an order against you that is valid for a period of time between one to five years. You may seek the advice of an attorney as to any matter connected with the order. The attorney should be consulted promptly so that the attorney may assist you in any matter connected with the order.”

(b) (1) An ex parte gun violence restraining order shall be personally served on the restrained person by a law enforcement officer, or by a person as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.
(2) When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing scheduled pursuant to Section 18165.
(3) When serving a gun violence restraining order, a law enforcement officer shall verbally ask the restrained person if the person has any firearm, ammunition, or magazine in the person’s possession or under the person’s custody or control.

SEC. 4.

 Section 18170 of the Penal Code is amended to read:

18170.
 (a) An immediate family member of a person or a law enforcement officer may request that a court, after notice and a hearing, issue a gun violence restraining order enjoining the subject of the petition from having in the subject’s custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of time between one to five years.
(b) For purposes of this section, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

SEC. 5.

 Section 18175 of the Penal Code is amended to read:

18175.
 (a) In determining whether to issue a gun violence restraining order under this chapter, the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of the facts identified in paragraph (2) of subdivision (b) of Section 18155.
(b) At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that both of the following are true:
(1) The subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of causing personal injury to themselves or another by having in the person’s custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.
(2) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable, or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable.
(c) (1) If the court finds that there is clear and convincing evidence to issue a gun violence restraining order, the court shall issue a gun violence restraining order that prohibits the subject of the petition from having in the subject’s custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition.
(2) If the court finds that there is not clear and convincing evidence to support the issuance of a gun violence restraining order, the court shall dissolve any a temporary emergency or ex parte gun violence restraining order then in effect.
(d) A (1) The court shall issue a gun violence restraining order issued under this chapter has a duration of for a period of time of one to five years, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and renewal by further order of the court pursuant to Section 18190.
(2) In determining the duration of the gun violence restraining order pursuant to paragraph (1), the court shall consider the length of time that the circumstances set forth in subdivision (b) are likely to continue, and shall issue the order based on that determination.

SEC. 6.

 Section 18180 of the Penal Code is amended to read:

18180.
 (a) A gun violence restraining order issued pursuant to this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the order.
(2) The date and time the order expires.
(3) The address of the superior court for the county in which the restrained party resides.
(4) The following statement:

“To the restrained person: This order will last until the date and time noted above. If you have not done so already, you must surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code. You may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive a firearm, ammunition, or magazine, while this order is in effect. Pursuant to Section 18185, you have the right to request a hearing on an annual basis to terminate this order during its effective period. You may seek the advice of an attorney as to any matter connected with the order.”

(b) If the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that the person is entitled to a hearing on an annual basis to request a termination of the order, pursuant to Section 18185, and shall provide the restrained person with a form to request a hearing.

SEC. 7.

 Section 18185 of the Penal Code is amended to read:

18185.
 (a) A person subject to a gun violence restraining order issued under this chapter may submit one written request per year during the effective period of the order for a hearing to terminate the order.
(b) If the court finds after the hearing that there is no longer clear and convincing evidence to believe that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true, the court shall terminate the order.

SEC. 8.

 Section 18190 of the Penal Code is amended to read:

18190.
 (a) (1) An immediate family member of a restrained person or a law enforcement officer may request a renewal of a gun violence restraining order at any time within the three months before the expiration of a gun violence restraining order.
(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.
(b) A court may, after notice and a hearing, renew a gun violence restraining order issued under this chapter if the petitioner proves, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 continue to be true.
(c) In determining whether to renew a gun violence restraining order issued under this chapter, the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the facts identified in paragraph (2) of subdivision (b) of Section 18155.
(d) At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true.
(e) If the renewal petition is supported by clear and convincing evidence, the court shall renew the gun violence restraining order issued under this chapter.
(f) (1) The renewal of a gun violence restraining order issued pursuant to this section shall have a duration of between one to five years, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and further renewal by further order of the court pursuant to this section.
(2) In determining the duration of the gun violence restraining order pursuant to paragraph (1), the court shall consider the length of time that the circumstances set forth in subdivision (b) of Section 18175 are likely to continue, and shall issue the order based on that determination.
(g) A gun violence restraining order renewed pursuant to this section shall include the information identified in subdivision (a) of Section 18180.

SEC. 9.

 Section 18197 of the Penal Code is amended to read:

18197.
 If a person subject to a gun violence restraining order issued or renewed pursuant to this chapter was not present in court at the time the order was issued or renewed, the gun violence restraining order shall be personally served on the restrained person by a law enforcement officer, or by a person as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.