Bill Text: CA AB733 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Firearms: sale by government entity.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Vetoed) 2024-01-25 - Consideration of Governor's veto stricken from file. [AB733 Detail]

Download: California-2023-AB733-Amended.html

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Amended  IN  Senate  July 03, 2023

Amended  IN  Senate  June 29, 2023

Amended  IN  Assembly  May 25, 2023

Amended  IN  Assembly  April 26, 2023

Amended  IN  Assembly  March 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 733

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Introduced by Assembly Member Mike Fong
(Principal coauthor: Assembly Member Hart)
(Coauthor: Senator Becker)

February 13, 2023

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An act to amend Sections 16288, 16520, 29810, and 34000 of, and to add Chapter 3 (commencing with Section 29550) to Division 8 of Title 4 of Part 6 of, the Penal Code, relating to firearms.

LEGISLATIVE COUNSEL'S DIGEST

AB 733, as amended, Mike Fong. Firearms: sale by government entity.

Previous law authorized a law enforcement agency to dispose of seized, surrendered, abandoned, and unclaimed firearms by sale at a public auction or by destruction. Existing law requires these firearms to be disposed of by destruction.

Existing law prohibits the sale of a firearm on any state property, as specified.

This bill would, except as specifically exempted, prohibit any state or local government agency or department, as specified, to sell any firearm, ammunition, or body armor.

The bill would also make other conforming changes and technical corrections.

The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

Digest Key

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

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Bill Text

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

SECTION 1.

 Section 16288 of the Penal Code is amended to read:

16288.

 As used in Sections 29550 and 31360, “body armor” means any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor.

SEC. 2.

 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, including both a completed frame or receiver, or a firearm precursor part:

(1) Section 136.2.

(2) Section 646.91.

(3) Sections 16515 and 16517.

(4) Section 16550.

(5) Section 16730.

(6) Section 16960.

(7) Section 16990.

(8) Section 17070.

(9) Section 17310.

(10) Sections 18100 to 18500, inclusive.

(11) Section 23690.

(12) Section 23900 to 23925, inclusive.

(13) Sections 26500 to 26590, inclusive.

(14) Sections 26600 to 27140, inclusive.

(15) Sections 27200 to 28490, inclusive.

(16) Sections 29010 to 29150, inclusive.

(17) Section 29185.

(18) Section 29550.

(19) Sections 29610 to 29750, inclusive.

(20) Sections 29800 to 29905, inclusive.

(21) Sections 30150 to 30165, inclusive.

(22) Section 31615.

(23) Sections 31700 to 31830, inclusive.

(24) Sections 34355 to 34370, inclusive.

(25) Sections 527.6 to 527.9, inclusive, of the Code of Civil Procedure.

(26) Sections 8100 to 8108, inclusive, of the Welfare and Institutions Code.

(27) Section 15657.03 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) Section 16730.

(2) Section 16550.

(3) Section 16960.

(4) Section 17310.

(5) Subdivision (b) of Section 23920.

(6) Section 25135.

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

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

(9) Sections 26500 to 26588, inclusive.

(10) Sections 26700 to 26915, inclusive.

(11) Section 27510.

(12) Section 27530.

(13) Section 27540.

(14) Section 27545.

(15) Sections 27555 to 27585, inclusive.

(16) Sections 29010 to 29150, inclusive.

(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 29180 to 29184, inclusive, “firearm” includes the completed frame or receiver of a weapon.

SEC. 3.

 Chapter 3 (commencing with Section 29550) is added to Division 8 of Title 4 of Part 6 of the Penal Code, to read:

CHAPTER  3. Sale of Firearms by Governmental Entities

29550.

 (a) No agency or department of the state or any political subdivision thereof shall sell any firearm, ammunition, or body armor.

(b) Subdivision (a) does not apply to either of the following:

(1) The sale of a firearm made pursuant to subdivision (b) or (d) of Section 10334 of the Public Contract Code, or comparable sale of a firearm by a local agency under the same circumstances.

(2) The sale of a firearm relinquished to an agency by a prohibited person made to a third party on behalf of the owner of the firearm.

(3) The sale of any firearm, body armor, or ammunition, to a law enforcement agency, or to a licensed firearm dealer who contractually agrees to resell the firearm firearm, body armor, or ammunition only to a law enforcement agency. However, any firearm .50 caliber or greater, excluding a shotgun, shall be subject to the provisions of Chapter 12.8 (commencing with Section 7070) of Division 7 of Title 1 of the Government Code.

(4) The sale of a curio or relic to a bona fide public or private nonprofit historical society, museum, or institutional collection, provided that the item will solely be used for educational, display, or preservation purposes.

(5) The sale of a firearm or body armor by the public administrator, public guardian, or public conservator in the performance of their duties as personal representative of a decedent’s estate, or in the performance of the duties of a conservator or guardian over a person or their estate, in order to fulfill their obligations under state law.

(c) This section does not prohibit the return of any previously purchased firearm, body armor, or ammunition to the original seller pursuant to any warranty, return policy, or other contract term, for a refund of the original purchase price.

SEC. 4.

 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 they own, possess, or have custody or control of, in the manner provided in this section.

(2) The court shall, upon conviction of a defendant for an offense described in subdivision (a), instruct the defendant that they are prohibited from owning, purchasing, receiving, possessing, or having custody or control of, 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 they are prohibited from owning, purchasing, receiving, possessing, or having custody or control of, any firearms, ammunition, and ammunition feeding devices, including but not limited to magazines, and that 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 they owned, possessed, or had custody or control of, at the time of 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 they owned, possessed, or had custody or control of, any firearms at the time of conviction, and grant the designee power of attorney for the purpose of transferring or disposing of all firearms.

(5) Require the designee to indicate consent to the designation and, except a designee that is a law enforcement agency, to declare under penalty of perjury that 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 custody or control of, 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 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) Prior to final disposition or sentencing in the case, the court shall make findings concerning whether the probation officer’s report indicates that the defendant has relinquished all firearms as required, and whether 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 period following conviction:

(1) The designee shall dispose of any firearms the defendant owns, possesses, or has custody or control of, within five 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 custody or control of, any firearms to relinquish, the defendant’s designee shall submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer within five days 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 custody or control of, any firearms to relinquish, the defendant shall, within five days following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that 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 period following conviction:

(1) The designee shall dispose of any firearms the defendant owns, possesses, or has custody or control of, 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 custody or control of, 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 custody or control of, any firearms to relinquish, the defendant shall, within 14 days following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that 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 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, 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. 5.

 Section 34000 of the Penal Code is amended to read:

34000.

 (a) Notwithstanding any provision of law or of any local ordinance to the contrary, when any firearm is in the possession of any officer of the state, or of a county, city, or city and county, or of any campus of the University of California or the California State University, and the firearm is an exhibit filed in any criminal action or proceeding which is no longer needed or is unclaimed or abandoned property, which has been in the possession of the officer for at least 180 days, the firearm shall be destroyed, as provided for in Section 18005.

(b) This section does not apply to any firearm in the possession of the Department of Fish and Game, or which was used in the violation of any provision in the Fish and Game Code, or any regulation under that code.

SEC. 6.

 The Legislature finds and declares that the disposal of firearms by government entities is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 3 of this act adding Section 29550 to the Penal Code applies to all cities, including charter cities.