Existing law prohibits a person who has been convicted of a felony from possessing a firearm. A violation of that prohibition is a felony. Existing law also prohibits a person who has been convicted of a specified misdemeanor from possessing a firearm for a period of 10 years. A violation of that prohibition may be punished as either a misdemeanor or a felony.

This bill would prohibit a person who is convicted on or after January 1, 2019, of a misdemeanor violation of willful infliction of corporal injury upon a spouse, cohabitant, or other specified person, from ever possessing a firearm. The bill would make the violation of that prohibition punishable as either a misdemeanor or as a felony.

By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits a person who has been convicted of a felony from possessing a firearm. A violation of that prohibition is a felony. Existing law also prohibits a person who has been convicted of a specified misdemeanor from possessing a firearm for a period of 10 years. A violation of that prohibition may be punished as either a misdemeanor or a felony.

This bill would prohibit a person who is convicted on or after January 1, 2019, of a misdemeanor violation of willful infliction of corporal injury upon a spouse, cohabitant, or other specified person, from ever possessing a firearm. The bill would make the violation of that prohibition punishable as either a misdemeanor or as a felony.

By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits a person who has been convicted of a felony from possessing a firearm. A violation of that prohibition is a felony. Existing law also prohibits a person who has been convicted of a specified misdemeanor from possessing a firearm for a period of 10 years. A violation of that prohibition may be punished as either a misdemeanor or a felony.

This bill would prohibit a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence that currently result in a 10-year prohibition against possessing a firearm, a misdemeanor violation of willful infliction of corporal injury upon a spouse, cohabitant, or other specified person, from ever possessing a firearm. The bill would make the violation of that prohibition punishable as either a misdemeanor or as a felony.

By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides that a person who finds lost property under circumstances that give the person knowledge of or means of inquiry as to the true owner, and who appropriates the property to his or her own use, or to the use of another person not entitled to the property, without first making reasonable and just efforts to find the owner and to restore the property to the owner, is guilty of theft.

This bill would make technical, nonsubstantive changes to those provisions.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 3129

Author:(Rubio)

As Amended Ver:July 2, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Prohibits a person who is convicted on or after January 1, 2019, of a misdemeanor domestic violence offense that currently results in a 10-year prohibition against possessing a firearm, from possessing a firearm for life.

The Senate amendments remove the crime of misdemeanor battery against a spouse, cohabitant, person involved in a dating relationship with the offender, or mother or father of the offender’s child, from the lifetime prohibition on possession of a firearm.

EXISTING LAW:

1. Specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
2. Requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law.
3. States that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30 day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact.
4. Requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period.
5. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors.
6. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
7. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well.
8. Punishes a violation of the 10 year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail.
9. Provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10 year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition.
10. States that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court make the following findings:
    1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
    2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
    3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10 year prohibition, no matter when the prior conviction occurred.
11. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail.
12. Provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm.
13. Punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison.
14. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status. The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon.
15. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition.

AS PASSED BY THE ASSEMBLY this bill:

1. Specified that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation for either of following offenses:
   1. Domestic violence; or
   2. Battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
2. Punished such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of the lifetime firearm ban. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual costs would depend on how many individuals convicted of domestic violence subsequently possess or own a gun. (General Fund)
2. Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who violate the extended firearm prohibition as imposed by this measure. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
3. Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

COMMENTS: According to the author, "AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.''

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004349

 THIRD READING  

Bill No: AB 3129

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 6/26/18

AYES: Skinner, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

NO VOTE RECORDED: Bradford

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/16/18

AYES: Portantino, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 45-16, 5/30/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill imposes a lifetime ban on the ownership, purchase, receipt, or possession of firearms on individuals who have been convicted of misdemeanor domestic violence.

ANALYSIS:

Existing law:

1. Specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (18 U.S.C. 922, subd. (g)(9).)
2. Requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law. (Pen. Code § 28220, subd. (b).)
3. States that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30-day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Pen. Code § 28220, subd. (c).)
4. Requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period. (Pen. Code § 28220, subd. (f).)
5. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors. (Pen. Code § 29805.)
6. Includes within the list of misdemeanors triggering a 10-year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code § 29805.)
7. Includes within the list of misdemeanors triggering a 10-year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well. (Penal Code § 29805.)
8. Punishes a violation of the 10-year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail. (Pen. Code § 29805.)
9. Provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10-year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition. (Pen. Code § 29855.)
10. States that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court makes the following findings: (Pen. Code § 29855, subd. (d).)
    1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
    2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
    3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10-year prohibition, no matter when the prior conviction occurred.
11. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code § 29825.)
12. Provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm. (Pen. Code § 29800.)
13. Punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison. (Pen. Code § 29800.)
14. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status. The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. (Pen. Code § 30000, et seq.)
15. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition. (Pen. Code §§ 27500 and 30306; and Welf. & Inst. Code § 8101.)

This bill:

1. Specifies that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation of domestic violence.
2. Punishes such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

Background

The list of serious and violent misdemeanors, conviction of which triggers a 10-year prohibition on owning or possessing a firearm, contains over 30 offenses. That list of misdemeanors includes the crimes of stalking, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, sexual battery, and threats of bodily injury or death. (Penal Code § 29805.)

This bill singles out misdemeanor domestic violence a misdemeanor offense on that list worthy of a lifetime ban on firearm possession. Current law provides that if an incident of domestic violence is serious enough to warrant a felony conviction, the person convicted of such a charge is subject to a lifetime ban. This bill deals with misdemeanor convictions for domestic violence. The fact that it is a misdemeanor conviction reflects that while the behavior is criminal, it falls on the lower end of the spectrum of domestic violence. Current law provides a more temporary firearm prohibition (10 years) for misdemeanors to reflect that a misdemeanor conviction reflects a lower level of criminality than a felony conviction. Current law further limits the misdemeanor prohibition to a limited number of misdemeanors that are more serious or violent. [NOTE: Refer to policy committee analysis for detailed background.]

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of the lifetime firearm ban. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual costs would depend on how many individuals convicted of domestic violence subsequently possess or own a gun. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who violate the extended firearm prohibition as imposed by this measure. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

Bay Area Student Activists

California Chapters of the Brady Campaign

California Partnership to End Domestic Violence

California Protective Parents Association

City of Santa Monica

Crime Victims United of California

Giffords Law Center

Protective Mothers of Solano County

Two individuals

OPPOSITION: (Verified 8/16/18)

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

ARGUMENT IN SUPPORT: According to the California Chapters of the Brady Campaign, “The California Chapters of the Brady Campaign to Prevent Gun Violence is a grassroots organization working to reduce firearm crime, injury, and death. There are 28 Brady Chapters throughout the state, many of whose members have lost a loved one to gunfire. In furtherance of our goal to reduce firearm violence in our homes and communities, the California Brady Campaign supports AB 3129, introduced by Assemblywoman Blanca Rubio.

“The numbers are grim. In America, a woman is shot and killed by a current or former partner every 16 hours. Three women are killed by their boyfriends or husbands every day. Women in the United States are 11 times more likely to be murdered with a gun compared to those living in other high-income nations. An analysis of FBI data shows that 54 percent of mass shooting events from 2009 to 2016 were related to domestic or family violence 422 people were killed. Furthermore, to maintain control, abusers frequently remind their partners that they are armed. An analysis of domestic violence reports in 2016 showed that about 4.5 million American women reported that an intimate partner had threatened them with a gun.

“Federal law prohibits the possession of firearms by those with a misdemeanor domestic violence conviction. Existing law prohibits a person who has been convicted of a felony from possessing a firearm. A violation of this prohibition is a felony. Existing state law also prohibits a person who has been convicted of a specified misdemeanor from possessing a firearm for a period of 10 years. A violation of this prohibition may be punished as either a misdemeanor or a felony. AB 3129 will impose a lifetime firearm prohibition on a person convicted of a domestic violence-related misdemeanor after January 1, 2019. The bill will continue to make a violation of a misdemeanor domestic violence firearm prohibition punishable as either a misdemeanor or as a felony.

“Studies show that past violent criminal behavior is a predictor of subsequent acts of violence. In fact, research has found that Californians with a prior conviction for a violent misdemeanor are 9 times as likely to commit subsequent violent crimes and also 9 times as likely to commit subsequent firearm offences. Moreover, if a gun is present in the home when a domestic violence incident takes place, the risk of homicide increases by 500%. It is essential that domestic abusers not be allowed access to firearms. AB 3129 will better protect victims of domestic violence by imposing a lifetime firearm prohibition on offenders under California law, thereby enabling better enforcement of the federal ban. Additionally, a state lifetime prohibition would protect California from any weakening of the federal firearm prohibition.

ARGUMENT IN OPPOSITION: According to the California Attorneys for Criminal Justice, “This bill would deign to impose a lifetime disenfranchisement on the exercise of the right to keep and bear arms upon persons who suffer misdemeanor convictions of either Penal Code Section 243 or Section 273.5, Unlike pre-existing lifetime federal prohibitions against the possession of firearms and ammunition by such misdemeanants, AB 3129 affords no protection to persons who were convicted without the benefit of jury, counsel or knowing and intelligent waiver of the right to jury and/or counsel. In this sense, AB 3129 is reminiscent of the pre-Gideon v. Wainwright (1963) 372 U.S. 335 era when states were free to ignore a citizen’s 6^th Amendment rights. Those days are passed. Recognizing this failure to provide basic protection against the arbitrary disenfranchisement of a core right, AB 3129 is reckless in the extreme and it is also completely unnecessary.

“Federal prohibitions already apply to such persons and they are stringently enforced. ‘The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the “use…of physical force’ against a domestic relation. (see 18 U.S.C. § 921(a)(33)(A).) That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm. And the state-law backdrop to that provision, which included misdemeanor assault statutes covering reckless conduct in a significant majority of jurisdictions, indicates that Congress meant just what it said.”

ASSEMBLY FLOOR: 45-16, 5/30/18

AYES: Acosta, Arambula, Baker, Bloom, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Cunningham, Daly, Eggman, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Irwin, Kiley, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Quirk-Silva, Reyes, Rodriguez, Rubio, Santiago, Thurmond, Ting, Weber, Wood, Rendon

NOES: Travis Allen, Bigelow, Brough, Cooley, Gallagher, Harper, Kamlager-Dove, Mayes, Obernolte, O'Donnell, Quirk, Salas, Steinorth, Mark Stone, Voepel, Waldron

NO VOTE RECORDED: Aguiar-Curry, Berman, Caballero, Chávez, Chen, Choi, Dahle, Flora, Fong, Frazier, Cristina Garcia, Holden, Jones-Sawyer, Kalra, Mathis, Melendez, Patterson

Prepared by:

8/18/18 13:49:56

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 3129 (Rubio) - Firearms: prohibited persons

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 3129 would impose a lifetime ban on the ownership, purchase, receipt, or possession of firearms on individuals who have been convicted of misdemeanor domestic violence.

Fiscal Impact:

• State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of the lifetime firearm ban. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual costs would depend on how many individuals convicted of domestic violence subsequently possess or own a gun. (General Fund)

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who violate the extended firearm prohibition as imposed by this measure. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

Background:

According to the analysis of this bill by the Senate Committee on Public Safety:

California has several laws that prohibit certain persons from purchasing firearms. All felony convictions lead to a lifetime prohibition, while a conviction of specified misdemeanors[, including crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship,] result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) If a person is admitted into a facility because that person is a danger to himself, herself, or to others, the person is prohibited from owning or purchasing a firearm for five years. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)

Proposed Law:

This bill would make it an alternate felony-misdemeanor for a person who is convicted of misdemeanor domestic violence starting January 1, 2019 to subsequently own, purchase, receive, or possess a firearm. This crime would be punishable by incarceration in county jail for up to one year or in state prison for sixteen months, two years, or three years and/or a base fine of $1,000.

Related Legislation:

AB 1968 (Low, 2018) would impose a lifetime firearm prohibition on individuals who are admitted into designated facilities because of a danger to self or others due to a mental health disorder. AB 1968 is pending in this Committee.

AB 1084 (Melendez, 2013) would have increased the penalty to incarceration in state prison for two, three, or four years when an individual, who has been prohibited from gun possession because the person has been held for specified mental health findings, possesses a gun. AB 1084 failed passage in the Assembly Committee on Public Safety.

AB 1131 (Skinner, Ch. 747, Stat. 2013) increased the period of time that a person is prohibited from possessing a firearm based on a mental illness or mental disorder or a serious threat of violence communicated to a licensed psychotherapist.

SB 755 (Wolk, 2013) would have prohibited a person who has been ordered by a court to undergo assisted outpatient treatment from purchasing or possessing any firearm or other deadly weapon while subject to assisted outpatient treatment. SB 755 was vetoed by the governor, who stated that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve the misuse of a firearm.”

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. To the extent even one additional defendant is committed to state prison as a result of this bill, state incarceration costs would surpass the Suspense File threshold. Additionally, as the crime established by this bill is punishable with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier court proceedings. Consequently, to the extent that the court adjudicates a dozen or more misdemeanor charges or more than three felony charges, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged violation of the extended prohibition, costs to the court resulting from this bill would be significant.

California is subject to a federal court order to reduce its in-state adult institution population to 137.5 percent of design capacity.  The state has undertaken efforts to implement a durable remedy to reduce and avoid prison overcrowding.  On July 4, 2018, 115,306 inmates were housed in the state’s thirty-five adult institutions, 6,286 were housed in in-state contract beds, and 2,810 inmates were housed in out-of-state facilities.  The prison population changes daily as new inmates are admitted and others are released, but, on that date, the state’s prison population was approximately 135.5 percent of design capacity. By potentially increasing the inmate population in in-state institutions, this bill could make it more difficult for the state to comply with the court order.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 3129 Hearing Date: June 26, 2018

Subject: Firearms: Prohibited Persons

HISTORY

Source: Author

Prior Legislation: AB 785 (Jones-Sawyer), Ch.784, Stats.of 2017

AB 1084 (Melendez), 2013 failed passage Assembly Public Safety
SB 580 (Jackson), 2013, held in Assembly Appropriations
SB 140 (Leno), Ch. 2, Stats. of 2013

Support: Bay Area Student Activists; California Chapters of the Brady Campaign; California Partnership to End Domestic Violence; California Protective Parents Association; City of Santa Monica; Crime Victims United of California; Giffords Law Center; Protective Mothers of Solano County; two private individuals

Opposition: American Civil Liberties Union; California Attorneys for Criminal Justice; California Public Defenders Association

Assembly Floor Vote: 45 - 16

PURPOSE

The purpose of this bill is to prohibit a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence that currently result in a 10-year prohibition against possessing a firearm, from ever possessing a firearm.

Existing law specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (18 U.S.C. 922, subd. (g)(9).)

Existing law requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law. (Pen. Code, § 28220, subd. (b).)

Existing law states that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30 day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Pen. Code, § 28220, subd. (c).)

Existing law requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period. (Pen. Code, § 28220, subd. (f).)

Existing law provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors. (Pen. Code, § 29805.)

Existing law includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)

Existing law includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well. (Penal Code, § 29805.)

Existing law punishes a violation of the 10 year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail. (Pen. Code, § 29805.)

Existing law provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10 year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition. (Pen. Code, § 29855.)

Existing law states that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court make the following findings: (Pen. Code, § 29855, subd. (d).)

1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
   
2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
   
3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10 year prohibition, no matter when the prior conviction occurred.
   

Existing law prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)

Existing law provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm. (Pen. Code, § 29800.)

Existing law punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison. (Pen. Code, § 29800.)

Existing law provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status.  The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. (Pen. Code, § 30000, et seq.)

Existing law prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition. (Pen. Code, §§ 27500 and 30306; and Welf. & Inst. Code, § 8101.)

This bill specifies that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation for either of following offenses:

1. Domestic violence; or
2. Battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.

This bill punishes such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

COMMENTS

1. Need for This Bill

AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.

2. Individuals Prohibited from Possessing Firearms in California

California has several laws that prohibit certain persons from purchasing firearms. All felony convictions lead to a lifetime prohibition, while a conviction of specified misdemeanors result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) If a person is admitted into a facility because that person is a danger to himself, herself, or to others, the person is prohibited from owning or purchasing a firearm for five years. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)

DOJ developed the Armed Prohibited Persons System (APPS) for tracking handgun and assault weapon owners in California who may pose a threat to public safety. (Pen. Code, § 30000 et seq.) APPS collects information about persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. DOJ receives automatic notifications from state and federal criminal history systems to determine if there is a match in the APPS for a current California gun owner. DOJ also receives information from courts, local law enforcement and state hospitals as well as public and private mental hospitals to determine whether someone is in a prohibited status. When a match is found, DOJ has the authority to investigate the person’s status and confiscate any firearms or weapons in the person's possession. Local law enforcement also may request from DOJ the status of an individual, or may request a list of prohibited persons within their jurisdiction, and conduct an investigation of those persons. (Pen. Code, § 30010.) Since the development of APPS, California has added long-gun transactions to the list of registered firearms and has added restraining orders to the list of prohibiting events.^[1]

3. Firearms and Domestic Violence in California

Current law prohibits a person from possessing firearms for a period of 10 years after a conviction specified misdemeanors. (Pen. Code, § 29805.) Current law includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)

Existing law also prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)

4. California Is a Point of Contact State for the National Instant Criminal Background Check System (NICS) and Enforces Federal Prohibitions on Firearm Purchase

California law requires any prospective purchaser of (or transferee or person being loaned) a firearm to submit an application to purchase the firearm (also known as a “Dealer Record of Sale” or “DROS” form) through a licensed dealer to DOJ. The dealer must submit firearm purchaser information to DOJ on the date of the application through electronic transfer, unless DOJ makes an exception allowing a different format.  The purchaser must present “clear evidence” of his or her identity and age to the dealer (either a valid California driver’s license or a valid California identification card issued by the Department of Motor Vehicles). Dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card. This information cannot be supplied by any other means except as authorized by DOJ.  Once this information is submitted, DOJ will check available and authorized records, including the federal NICS database, in order to determine whether the person is prohibited from possessing, receiving, owning, or purchasing a firearm by state or federal law.^[2]

California is a state that acts as a “Point of Contact” for all firearm transactions. Prior to passage of Proposition 63 in 2016, California authorized, but did not require, the DOJ to act as a point of contact for firearm background checks.  Effective July 1, 2017, Proposition 63 required the California DOJ to continue to serve as the point of contact for firearm purchaser background checks. Firearms dealers must therefore initiate the background check required by federal law by contacting the California DOJ.^[3] When California DOJ runs the background check they also check whether the person is federally eligible to purchase a firearm. Federal law prohibits possession of a firearm for life by an individual convicted of a misdemeanor crime of domestic violence. (18 U.S.C. 922, subd. (g)(9).) California DOJ will flag a misdemeanor domestic violence conviction as a federal prohibition on purchase of a firearm, regardless of when the conviction took take.

Those point of contact requirements are codified in Pen. Code, § 28220, which requires that California DOJ to participate in the National Instant Criminal Background Check System (NICS), and notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law.

In addition to checking the federal NICS database, DOJ is required to examine its own records, as well as those records that it is authorized to request from the State Department of State Hospitals.  If the person is prohibited from possessing firearms under state or federal law, DOJ must immediately notify the dealer and the local sheriff or chief of police in the city and/or county where the sale was made.  Licensed dealers are prohibited from delivering a firearm to a purchaser or transferee if the dealer has been notified by DOJ that the person is prohibited from possessing firearms. If the person is prohibited from possessing firearms, the dealer must make available to the prohibited person a DOJ “Prohibited Notice and Transfer” form, stating that the person is prohibited from owning or possessing a firearm and that the person may obtain from DOJ the reason for the prohibition. (Id.)

5. Effect of This Bill

The list of serious and violent misdemeanors, conviction of which triggers a 10 year prohibition on owning or possessing a firearm, contains over 30 offenses. That list of misdemeanors includes the crimes of stalking, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, sexual battery, and threats of bodily injury or death. (Penal Code, § 29805.)

This bill would single out misdemeanor domestic violence and misdemeanor battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship, as the two misdemeanor offenses on that list worthy of a lifetime ban on firearm possession. Current law provides that if an incident of domestic violence is serious enough to warrant a felony conviction, the person convicted of such a charge is subject to a lifetime ban. This bill deals with misdemeanor convictions for domestic violence. The fact that it is a misdemeanor conviction reflects that while the behavior is criminal, it falls on the lower end of the spectrum of domestic violence. Current law provides a more temporary firearm prohibition (10 years) for misdemeanors to reflect that a misdemeanor conviction reflects a lower level of criminality than a felony conviction. Current law further limits the misdemeanor prohibition to a limited number of misdemeanors that are more serious or violent.

6. Argument in Support

According to the California Chapters of the Brady Campaign:

The California Chapters of the Brady Campaign to Prevent Gun Violence is a grassroots organization working to reduce firearm crime, injury, and death. There are 28 Brady Chapters throughout the state, many of whose members have lost a loved one to gunfire. In furtherance of our goal to reduce firearm violence in our homes and communities, the California Brady Campaign supports AB 3129, introduced by Assemblywoman Blanca Rubio.

The numbers are grim. In America, a woman is shot and killed by a current or former partner every 16 hours. Three women are killed by their boyfriends or husbands every day. Women in the United States are 11 times more likely to be murdered with a gun compared to those living in other high-income nations. An analysis of FBI data shows that 54 percent of mass shooting events from 2009 to 2016 were related to domestic or family violence. 422 people were killed. Furthermore, to maintain control, abusers frequently remind their partners that they are armed. An analysis of domestic violence reports in 2016 showed that about 4.5 million American women reported that an intimate partner had threatened them with a gun.

Federal law prohibits the possession of firearms by those with a misdemeanor domestic violence conviction. Existing law prohibits a person who has been convicted of a felony from possessing a firearm. A violation of this prohibition is a felony. Existing state law also prohibits a person who has been convicted of a specified misdemeanor from possessing a firearm for a period of 10 years. A violation of this prohibition may be punished as either a misdemeanor or a felony. AB 3129 will impose a lifetime firearm prohibition on a person convicted of a domestic violence-related misdemeanor after January 1, 2019. The bill will continue to make a violation of a misdemeanor domestic violence firearm prohibition punishable as either a misdemeanor or as a felony.

Studies show that past violent criminal behavior is a predictor of subsequent acts of violence. In fact, research has found that Californians with a prior conviction for a violent misdemeanor are 9 times as likely to commit subsequent violent crimes and also 9 times as likely to commit subsequent firearm offences. Moreover, if a gun is present in the home when a domestic violence incident takes place, the risk of homicide increases by 500%. It is essential that domestic abusers not be allowed access to firearms. AB 3129 will better protect victims of domestic violence by imposing a lifetime firearm prohibition on offenders under California law, thereby enabling better enforcement of the federal ban. Additionally, a state lifetime prohibition would protect California from any weakening of the federal firearm prohibition.

7. Argument in Opposition

According to the California Attorneys for Criminal Justice:

This bill would deign to impose a lifetime disenfranchisement on the exercise of the right to keep and bear arms upon persons who suffer misdemeanor convictions of either Penal Code Section 243 or Section 273.5, Unlike pre-existing lifetime federal prohibitions against the possession of firearms and ammunition by such misdemeanants, AB 3129 affords no protection to persons who were convicted without the benefit of jury, counsel or knowing and intelligent waiver of the right to jury and/or counsel. In this sense, AB 3129 is reminiscent of the pre-Gideon v. Wainwright (1963) 372 U.S. 335 era when states were free to ignore a citizen’s 6^th Amendment rights. Those days are passed. Recognizing this failure to provide basic protection against the arbitrary disenfranchisement of a core right, AB 3129 is reckless in the extreme and it is also completely unnecessary.

Federal prohibitions already apply to such persons and they are stringently enforced. “The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the “use…of physical force” against a domestic relation. (see 18 U.S.C. § 921(a)(33)(A).) That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm. And the state-law backdrop to that provision, which included misdemeanor assault statutes covering reckless conduct in a significant majority of jurisdictions, indicates that Congress meant just what it said.

-- END –

1. (http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/sb-140-supp-budget-report.pdf) ↑

2. (http://lawcenter.giffords.org/background-checks-in-california/) ↑

3. (http://lawcenter.giffords.org/background-checks-in-california/) ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 3129

Author:(Rubio)

As Amended Ver:March 19, 2018

Majority vote

SUMMARY: Prohibits a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence that currently result in a 10-year prohibition against possessing a firearm, from ever possessing a firearm. Specifically, this bill:

1. Specifies that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation for either of following offenses:
   1. Domestic violence; or
   2. Battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
2. Punishes such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

EXISTING LAW:

1. Specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
2. Requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law.
3. States that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30 day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact.
4. Requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period.
5. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors.
6. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
7. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well.
8. Punishes a violation of the 10 year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail.
9. Provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10 year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition.
10. States that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court make the following findings:
    1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
    2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
    3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10 year prohibition, no matter when the prior conviction occurred.
11. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail.
12. Provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm.
13. Punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison.
14. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status. The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon.
15. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown, potentially significant GF costs for the California Department of Corrections and Rehabilitation (CDCR) to incarcerate offenders who possess a firearm while prohibited. This is because this bill expands the amount of time offenders are prohibited from owning a firearm. For example, if five offenders annually are admitted to CDCR for one year as a result of this bill, incarceration costs will be $150,000 assuming the $30,000 out-of-state contract bed rate.
2. Minor costs to the Department of Justice related to arrest records and fingerprints.

COMMENTS: According to the author, "AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0003090

Date of Hearing: May 9, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 3129

Author:(Rubio) – As Amended Ver:March 19, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill prohibits a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence from ever possessing a firearm. Currently, state law prohibits these individuals from possessing a firearm for ten years following conviction.

FISCAL EFFECT:

1. Unknown, potentially significant GF costs for the California Department of Corrections and Rehabilitation (CDCR) to incarcerate offenders who possess a firearm while prohibited. This is because this bill expands the amount of time offenders are prohibited from owning a firearm. For example, if five offenders annually are admitted to CDCR for one year as a result of this bill, incarceration costs will be $150,000 assuming the $30,000 out-of-state contract bed rate.
2. Minor costs to the Department of Justice related to arrest records and fingerprints.

COMMENTS:

1. Background. Every person with a felony conviction is subject to a lifetime prohibition on owning or possessing a firearm. State law requires a 10-year prohibition from owning or possessing a firearm for persons convicted of certain violent misdemeanors, such as misdemeanor domestic violence.
2. Purpose. According to the author:

AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3129

Author:(Rubio) – As Amended Ver:March 19, 2018

SUMMARY:

Prohibits a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence that currently result in a 10-year prohibition against possessing a firearm, from ever possessing a firearm. Specifically, this bill:

1. Specifies that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation for either of following offenses:
   
   1. Domestic violence; or
      
   2. Battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
      
2. Punishes such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

EXISTING LAW:

1. Specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (18 U.S.C. 922, subd. (g)(9).)
   
2. Requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law. (Pen. Code, § 28220, subd. (b).)
   
3. States that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30 day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Pen. Code, § 28220, subd. (c).)
   
4. Requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period. (Pen. Code, § 28220, subd. (f).)
5. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors. (Pen. Code, § 29805.)
   
6. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)
   
7. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well. (Penal Code, § 29805.)
   
8. Punishes a violation of the 10 year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail. (Pen. Code, § 29805.)
   
9. Provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10 year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition. (Pen. Code, § 29855.)
   
10. States that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court make the following findings: (Pen. Code, § 29855, subd. (d).)
    
    1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
       
    2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
       
    3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10 year prohibition, no matter when the prior conviction occurred.
       
11. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)
    
12. Provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm. (Pen. Code, § 29800.)
    
13. Punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison. (Pen. Code, § 29800.)
    
14. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status.  The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. (Pen. Code, § 30000, et seq.)
15. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition. (Pen. Code, §§ 27500 and 30306; and Welf. & Inst. Code, § 8101.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.”
   
2. Individuals Prohibited from Possessing Firearms in California: California has several laws that prohibit certain persons from purchasing firearms. All felony convictions lead to a lifetime prohibition, while a conviction of specified misdemeanors result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) If a person is admitted into a facility because that person is a danger to himself, herself, or to others, the person is prohibited from owning or purchasing a firearm for five years. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)
   
   DOJ developed the Armed Prohibited Persons System (APPS) for tracking handgun and assault weapon owners in California who may pose a threat to public safety. (Pen. Code, § 30000 et seq.) APPS collects information about persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. DOJ receives automatic notifications from state and federal criminal history systems to determine if there is a match in the APPS for a current California gun owner. DOJ also receives information from courts, local law enforcement and state hospitals as well as public and private mental hospitals to determine whether someone is in a prohibited status. When a match is found, DOJ has the authority to investigate the person’s status and confiscate any firearms or weapons in the person's possession. Local law enforcement also may request from DOJ the status of an individual, or may request a list of prohibited persons within their jurisdiction, and conduct an investigation of those persons. (Pen. Code, § 30010.) Since the development of APPS, California has added long-gun transactions to the list of registered firearms and has added restraining orders to the list of prohibiting events. (http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/sb-140-supp-budget-report.pdf )
   
3. Firearms and Domestic Violence in California: Current law prohibits a person from possessing firearms for a period of 10 years after a conviction specified misdemeanors. (Pen. Code, § 29805.) Current law includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)
   
   Existing law also prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)
   
4. California Is a Point of Contact State for the National Instant Criminal Background Check System (NICS) and Enforces Federal Prohibitions on Firearm Purchase: California law requires any prospective purchaser of (or transferee or person being loaned) a firearm to submit an application to purchase the firearm (also known as a “Dealer Record of Sale” or “DROS” form) through a licensed dealer to DOJ. The dealer must submit firearm purchaser information to DOJ on the date of the application through electronic transfer, unless DOJ makes an exception allowing a different format.  The purchaser must present “clear evidence” of his or her identity and age to the dealer (either a valid California driver’s license or a valid California identification card issued by the Department of Motor Vehicles). Dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card. This information cannot be supplied by any other means except as authorized by DOJ.  Once this information is submitted, DOJ will check available and authorized records, including the federal NICS database, in order to determine whether the person is prohibited from possessing, receiving, owning, or purchasing a firearm by state or federal law. (http://lawcenter.giffords.org/background-checks-in-california/)
   
   California is a state that acts as a “Point of Contact” for all firearm transactions. Prior to passage of Proposition 63 in 2016, California authorized, but did not require, the DOJ to act as a point of contact for firearm background checks.  Effective July 1, 2017, Proposition 63 required the California DOJ to continue to serve as the point of contact for firearm purchaser background checks. Firearms dealers must therefore initiate the background check required by federal law by contacting the California DOJ. (http://lawcenter.giffords.org/background-checks-in-california/) When California DOJ runs the background check they also check whether the person is federally eligible to purchase a firearm. Federal law prohibits possession of a firearm for life by an individual convicted of a misdemeanor crime of domestic violence. (18 U.S.C. 922, subd. (g)(9).) California DOJ will flag a misdemeanor domestic violence conviction as a federal prohibition on purchase of a firearm, regardless of when the conviction took take.
   

Those point of contact requirements are codified in Pen. Code, § 28220, which requires that California DOJ to participate in the National Instant Criminal Background Check System (NICS), and notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law.

In addition to checking the federal NICS database, DOJ is required to examine its own records, as well as those records that it is authorized to request from the State Department of State Hospitals.  If the person is prohibited from possessing firearms under state or federal law, DOJ must immediately notify the dealer and the local sheriff or chief of police in the city and/or county where the sale was made.  Licensed dealers are prohibited from delivering a firearm to a purchaser or transferee if the dealer has been notified by DOJ that the person is prohibited from possessing firearms. If the person is prohibited from possessing firearms, the dealer must make available to the prohibited person a DOJ “Prohibited Notice and Transfer” form, stating that the person is prohibited from owning or possessing a firearm and that the person may obtain from DOJ the reason for the prohibition. (Id.)

1. This Bill Would Create Disparate Treatment For Misdemeanor Convictions Reflecting the Same Level of Seriousness: The list of serious and violent misdemeanors, conviction of which triggers a 10 year prohibition on owning or possessing a firearm, contains over 30 offenses. That list of misdemeanors includes the crimes of stalking, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, sexual battery, and threats of bodily injury or death. (Penal Code, § 29805.)
   
   This bill would single out misdemeanor domestic violence and misdemeanor battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship, as the two misdemeanor offenses on that list worthy of a lifetime ban on firearm possession. Even recognizing the pervasiveness of domestic violence as an issue in California communities, the nature of the harm and potential future harm do not seem to be substantially different or larger than presented by many of the other misdemeanors on the list involving violence or threats of violence.
   
   Current law provides that if an incident of domestic violence is serious enough to warrant a felony conviction, the person convicted of such a charge is subject to a lifetime ban. This bill deals with misdemeanor convictions for domestic violence. The fact that it is a misdemeanor conviction reflects that while the behavior is criminal, it falls on the lower end of the spectrum of domestic violence. Current law provides a more temporary firearm prohibition (10 years) for misdemeanors to reflect that a misdemeanor conviction reflects a lower level of criminality than a felony conviction. Current law further limits the misdemeanor prohibition to a limited number of misdemeanors that are more serious or violent.
   
   It is interesting to note that the only offenses which allow a police officer or a person that needs to lawfully a firearm for their employment to petition for relief from the 10 year firearm prohibition, are domestic violence, violation of a restraining order, and stalking.
2. Argument in Support: According to the Giffords Law Center to Prevent Gun Violence, “Under federal law, convicted domestic abusers lose their rights to purchase or possess firearms for the duration of their lifetimes. California’s law is more lenient than federal law in this regard –while individuals convicted of domestic violence felonies are prohibited from purchasing or possessing firearms for life, domestic violence misdemeanants can only be prosecuted under state law for subsequent illegal gun possession for 10 years following their convictions. AB 3129 would make California’s prohibition mirror federal law by extending the prohibition on gun possession by domestic violence misdemeanants for the duration of their lifetimes.
   
   “American women are at a higher risk of domestic gun violence than women in peer nations—the firearm homicide rate for women in the United States is 16 times higher than that in other high-income countries. While federal law recognizes that domestic violence misdemeanants are a danger to society when they possess guns, the Bureau of Alcohol, Tobacco, Firearms and Explosives—a federal agency that has lacked a Senate confirmed

director since 2015—is underfunded and incapable of prosecuting all federal
gun crimes. By prohibiting domestic violence misdemeanants from possessing firearms for life, California would enhance public safety by enabling state prosecution of this crime. Furthermore, AB 3129 would not create a new class of prohibited people but merely help keep guns away from individuals who are already prohibited from having them.”

1. Argument in Opposition: According to the American Civil Liberties Union of California, “The ACLU of California does not oppose gun control measures that regulate the acquisition or use of guns, so long as those regulations contribute to public safety. Additionally, we do not oppose laws that authorize protective orders to remove guns from people who pose a risk to themselves or others, provided there are nondiscriminatory criteria for defining people as dangerous, and a fair process for those affected to object and be heard by a court.
   
   “AB 3129, however, enacts a lifetime ban on possessing a firearm only on people who have ever had a conviction for a misdemeanor relating to domestic violence, perpetuating the harmful and unfounded stereotype that a person who has been convicted of a crime is inherently dangerous, regardless of how long ago the incident occurred, and how successful their reform and rehabilitation has been since then.
   
   “Under current law, people with these misdemeanor convictions are already banned from possessing a firearm for ten years. With AB 3129, even if they have been conviction-free for a decade – or even five decades – they could still be arrested, prosecuted, and incarcerated for a felony if they come into possession of a firearm.
   
   “The criminal justice consequences of this bill will not only worsen our state’s over-incarceration problem, but will also have a disproportionate impact on communities of color – racial disparities pervade the criminal justice system, and crimes related to firearms are no different. In 2016 in California, nearly one-fourth of all people arrested for felony weapons offenses were Black and nearly half were Latino, even though Black people make up only 6.5 percent of the state population and Latinos only 39 percent.
   
   “Gun control measures need to strike a balance between civil liberties protections, public safety, and public welfare considerations. Unfortunately, AB 3129 discriminates against people who have ever had a misdemeanor conviction related to domestic violence, no matter how long ago the conviction or how the person has lived since. Further, there is no evidence that this bill would improve public safety or welfare. For these reasons, the ACLU of California respectfully opposes this bill.”
   
2. Related Legislation:
   
   1. AB 2888 (Ting ), would authorize an employer, a coworker, or a mental health worker to file a petition for gun violence restraining order for a person that poses a significant danger by possessing a firearm. AB 2888 is awaiting hearing in the Assembly Public Safety Committee.
      
   2. AB 1968 (Low), would require that a person who has been taken into custody, assessed, and admitted to a designated facility because he or she is a danger to himself, herself, or others, as a result of a mental health disorder more than once within a one-year period to be prohibited from owning a firearm for the remainder of his or her life. AB 1968 is awaiting hearing in the Assembly Appropriations Committee.
      
3. Prior Legislation:
   
   1. AB 785 (Jones-Sawyer), Chapter 784, Statutes of 2017, added two hate crimes to the list of misdemeanors that result in a ban on the right to possess a firearm for 10 years.
      
   2. AB 1084 (Melendez), of the 2013-2014 Legislative Session would have increased the penalties to two, three, or four years in the state prison when an individual possesses a gun, who has been prohibited from gun possession because the person has been held for specified mental health findings. AB 1084 failed passage in the Assembly Public Safety Committee.
      
   3. SB 580 (Jackson), of the 2013-2014 Legislative Session, would have would appropriated the sum of $5,000,000 from the FSESF to the DOJ to contract with local law enforcement agencies to reduce the backlog of individuals who are identified by APPS as illegally possessing firearms. SB 580 died in the Assembly Committee on Appropriations.
      
   4. SB 140 (Leno), Chapter 2, Statutes of 2013, appropriated $24 million from the DROS Special Account to the DOJ for costs associated with regulatory and enforcement of illegal possession of firearms by prohibited persons.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Area Student Activists
Brady Campaign, California Chapters
California Partnership to End Domestic Violence
California Protective Parents Association
Giffords Law Center to Prevent Gun Violence
2 private individuals

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3129

Author:(Rubio) – As Amended Ver:March 19, 2018

SUMMARY:

Prohibits a person who is convicted on or after January 1, 2019, of specified misdemeanors relating to domestic violence that currently result in a 10-year prohibition against possessing a firearm, from ever possessing a firearm. Specifically, this bill:

1. Specifies that is unlawful for a person to ever own or possess a firearm, if that person is convicted on or after January 1, 2019, of a misdemeanor violation for either of following offenses:
   
   1. Domestic violence; or
      
   2. Battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship.
      
2. Punishes such an offense as a felony with a maximum sentence of three years in state prison or as a misdemeanor with a maximum sentence of one year in the county jail.

EXISTING LAW:

1. Specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence, to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (18 U.S.C. 922, subd. (g)(9).)
   
2. Requires that the Department of Justice (DOJ) participate in the National Instant Criminal Background Check System (NICS), and shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law. (Pen. Code, § 28220, subd. (b).)
   
3. States that if DOJ determines that the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm or is attempting to purchase more than one handgun in a 30 day period, it shall immediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Pen. Code, § 28220, subd. (c).)
   
4. Requires DOJ to immediately notify the dealer to delay the transfer of the firearm to the purchaser if the records of the department, or the records available to the department in NICS, indicates that the purchaser has been arrested for, or charged with, a crime that would make him or her, if convicted, a person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, and the department is unable to ascertain whether the purchaser was convicted of that offense prior to the conclusion of the waiting period. (Pen. Code, § 28220, subd. (f).)
5. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession firearms for a period of 10 years after a conviction for specified misdemeanors. (Pen. Code, § 29805.)
   
6. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)
   
7. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well. (Penal Code, § 29805.)
   
8. Punishes a violation of the 10 year prohibition on firearms as a felony with a maximum punishment of three years in the county jail (realignment), or as a misdemeanor with a maximum punishment of one year in the county jail. (Pen. Code, § 29805.)
   
9. Provides that any peace officer or person whose employment is dependent on the ability to legally possess a firearm, who is subject to the 10 year prohibition imposed because of a conviction of domestic violence, stalking, or violation of a domestic violence restraining order may petition the court only once for relief from this prohibition. (Pen. Code, § 29855.)
   
10. States that a court, in the case of a peace officer or person whose employment is dependent on the ability to legally possess a firearm, may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate, if the court make the following findings: (Pen. Code, § 29855, subd. (d).)
    
    1. Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner;
       
    2. Finds that the petitioner does not fall within another specified class which is prohibited from possessing firearms; and,
       
    3. Finds that the petitioner does not have a previous conviction for the specified violent or serious misdemeanors that trigger a 10 year prohibition, no matter when the prior conviction occurred.
       
11. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)
    
12. Provides that persons convicted of felonies are prohibited for their lifetimes from owning or possessing a firearm. (Pen. Code, § 29800.)
    
13. Punishes a violation of a felon in possession of a firearm as a felony with a maximum of three years in the state prison. (Pen. Code, § 29800.)
    
14. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status.  The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. (Pen. Code, § 30000, et seq.)
15. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition. (Pen. Code, §§ 27500 and 30306; and Welf. & Inst. Code, § 8101.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 3129 will better protect victims of domestic violence by imposing a lifetime ban on firearms for individuals with a history of domestic abuse. Current law is inadequate to fully protect our most vulnerable population who are survivors of domestic violence. We are moving to conform with federal law which already imposes a lifetime ban on possession of firearms for individuals convicted of misdemeanor domestic violence in any court.”
   
2. Individuals Prohibited from Possessing Firearms in California: California has several laws that prohibit certain persons from purchasing firearms. All felony convictions lead to a lifetime prohibition, while a conviction of specified misdemeanors result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) If a person is admitted into a facility because that person is a danger to himself, herself, or to others, the person is prohibited from owning or purchasing a firearm for five years. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)
   
   DOJ developed the Armed Prohibited Persons System (APPS) for tracking handgun and assault weapon owners in California who may pose a threat to public safety. (Pen. Code, § 30000 et seq.) APPS collects information about persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. DOJ receives automatic notifications from state and federal criminal history systems to determine if there is a match in the APPS for a current California gun owner. DOJ also receives information from courts, local law enforcement and state hospitals as well as public and private mental hospitals to determine whether someone is in a prohibited status. When a match is found, DOJ has the authority to investigate the person’s status and confiscate any firearms or weapons in the person's possession. Local law enforcement also may request from DOJ the status of an individual, or may request a list of prohibited persons within their jurisdiction, and conduct an investigation of those persons. (Pen. Code, § 30010.) Since the development of APPS, California has added long-gun transactions to the list of registered firearms and has added restraining orders to the list of prohibiting events. (http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/sb-140-supp-budget-report.pdf )
   
3. Firearms and Domestic Violence in California: Current law prohibits a person from possessing firearms for a period of 10 years after a conviction specified misdemeanors. (Pen. Code, § 29805.) Current law includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship. (Pen. Code, § 29805.)
   
   Existing law also prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)
   
4. California Is a Point of Contact State for the National Instant Criminal Background Check System (NICS) and Enforces Federal Prohibitions on Firearm Purchase: California law requires any prospective purchaser of (or transferee or person being loaned) a firearm to submit an application to purchase the firearm (also known as a “Dealer Record of Sale” or “DROS” form) through a licensed dealer to DOJ. The dealer must submit firearm purchaser information to DOJ on the date of the application through electronic transfer, unless DOJ makes an exception allowing a different format.  The purchaser must present “clear evidence” of his or her identity and age to the dealer (either a valid California driver’s license or a valid California identification card issued by the Department of Motor Vehicles). Dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card. This information cannot be supplied by any other means except as authorized by DOJ.  Once this information is submitted, DOJ will check available and authorized records, including the federal NICS database, in order to determine whether the person is prohibited from possessing, receiving, owning, or purchasing a firearm by state or federal law. (http://lawcenter.giffords.org/background-checks-in-california/)
   
   California is a state that acts as a “Point of Contact” for all firearm transactions. Prior to passage of Proposition 63 in 2016, California authorized, but did not require, the DOJ to act as a point of contact for firearm background checks.  Effective July 1, 2017, Proposition 63 required the California DOJ to continue to serve as the point of contact for firearm purchaser background checks. Firearms dealers must therefore initiate the background check required by federal law by contacting the California DOJ. (http://lawcenter.giffords.org/background-checks-in-california/) When California DOJ runs the background check they also check whether the person is federally eligible to purchase a firearm. Federal law prohibits possession of a firearm for life by an individual convicted of a misdemeanor crime of domestic violence. (18 U.S.C. 922, subd. (g)(9).) California DOJ will flag a misdemeanor domestic violence conviction as a federal prohibition on purchase of a firearm, regardless of when the conviction took take.
   

Those point of contact requirements are codified in Pen. Code, § 28220, which requires that California DOJ to participate in the National Instant Criminal Background Check System (NICS), and notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law.

In addition to checking the federal NICS database, DOJ is required to examine its own records, as well as those records that it is authorized to request from the State Department of State Hospitals.  If the person is prohibited from possessing firearms under state or federal law, DOJ must immediately notify the dealer and the local sheriff or chief of police in the city and/or county where the sale was made.  Licensed dealers are prohibited from delivering a firearm to a purchaser or transferee if the dealer has been notified by DOJ that the person is prohibited from possessing firearms. If the person is prohibited from possessing firearms, the dealer must make available to the prohibited person a DOJ “Prohibited Notice and Transfer” form, stating that the person is prohibited from owning or possessing a firearm and that the person may obtain from DOJ the reason for the prohibition. (Id.)

1. This Bill Would Create Disparate Treatment For Misdemeanor Convictions Reflecting the Same Level of Seriousness: The list of serious and violent misdemeanors, conviction of which triggers a 10 year prohibition on owning or possessing a firearm, contains over 30 offenses. That list of misdemeanors includes the crimes of stalking, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, sexual battery, and threats of bodily injury or death. (Penal Code, § 29805.)
   
   This bill would single out misdemeanor domestic violence and misdemeanor battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship, as the two misdemeanor offenses on that list worthy of a lifetime ban on firearm possession. Even recognizing the pervasiveness of domestic violence as an issue in California communities, the nature of the harm and potential future harm do not seem to be substantially different or larger than presented by many of the other misdemeanors on the list involving violence or threats of violence.
   
   Current law provides that if an incident of domestic violence is serious enough to warrant a felony conviction, the person convicted of such a charge is subject to a lifetime ban. This bill deals with misdemeanor convictions for domestic violence. The fact that it is a misdemeanor conviction reflects that while the behavior is criminal, it falls on the lower end of the spectrum of domestic violence. Current law provides a more temporary firearm prohibition (10 years) for misdemeanors to reflect that a misdemeanor conviction reflects a lower level of criminality than a felony conviction. Current law further limits the misdemeanor prohibition to a limited number of misdemeanors that are more serious or violent.
   
   It is interesting to note that the only offenses which allow a police officer or a person that needs to lawfully a firearm for their employment to petition for relief from the 10 year firearm prohibition, are domestic violence, violation of a restraining order, and stalking.
2. Argument in Support: According to the Giffords Law Center to Prevent Gun Violence, “Under federal law, convicted domestic abusers lose their rights to purchase or possess firearms for the duration of their lifetimes. California’s law is more lenient than federal law in this regard –while individuals convicted of domestic violence felonies are prohibited from purchasing or possessing firearms for life, domestic violence misdemeanants can only be prosecuted under state law for subsequent illegal gun possession for 10 years following their convictions. AB 3129 would make California’s prohibition mirror federal law by extending the prohibition on gun possession by domestic violence misdemeanants for the duration of their lifetimes.
   
   “American women are at a higher risk of domestic gun violence than women in peer nations—the firearm homicide rate for women in the United States is 16 times higher than that in other high-income countries. While federal law recognizes that domestic violence misdemeanants are a danger to society when they possess guns, the Bureau of Alcohol, Tobacco, Firearms and Explosives—a federal agency that has lacked a Senate confirmed

director since 2015—is underfunded and incapable of prosecuting all federal
gun crimes. By prohibiting domestic violence misdemeanants from possessing firearms for life, California would enhance public safety by enabling state prosecution of this crime. Furthermore, AB 3129 would not create a new class of prohibited people but merely help keep guns away from individuals who are already prohibited from having them.”

1. Argument in Opposition: According to the American Civil Liberties Union of California, “The ACLU of California does not oppose gun control measures that regulate the acquisition or use of guns, so long as those regulations contribute to public safety. Additionally, we do not oppose laws that authorize protective orders to remove guns from people who pose a risk to themselves or others, provided there are nondiscriminatory criteria for defining people as dangerous, and a fair process for those affected to object and be heard by a court.
   
   “AB 3129, however, enacts a lifetime ban on possessing a firearm only on people who have ever had a conviction for a misdemeanor relating to domestic violence, perpetuating the harmful and unfounded stereotype that a person who has been convicted of a crime is inherently dangerous, regardless of how long ago the incident occurred, and how successful their reform and rehabilitation has been since then.
   
   “Under current law, people with these misdemeanor convictions are already banned from possessing a firearm for ten years. With AB 3129, even if they have been conviction-free for a decade – or even five decades – they could still be arrested, prosecuted, and incarcerated for a felony if they come into possession of a firearm.
   
   “The criminal justice consequences of this bill will not only worsen our state’s over-incarceration problem, but will also have a disproportionate impact on communities of color – racial disparities pervade the criminal justice system, and crimes related to firearms are no different. In 2016 in California, nearly one-fourth of all people arrested for felony weapons offenses were Black and nearly half were Latino, even though Black people make up only 6.5 percent of the state population and Latinos only 39 percent.
   
   “Gun control measures need to strike a balance between civil liberties protections, public safety, and public welfare considerations. Unfortunately, AB 3129 discriminates against people who have ever had a misdemeanor conviction related to domestic violence, no matter how long ago the conviction or how the person has lived since. Further, there is no evidence that this bill would improve public safety or welfare. For these reasons, the ACLU of California respectfully opposes this bill.”
   
2. Related Legislation:
   
   1. AB 2888 (Ting ), would authorize an employer, a coworker, or a mental health worker to file a petition for gun violence restraining order for a person that poses a significant danger by possessing a firearm. AB 2888 is awaiting hearing in the Assembly Public Safety Committee.
      
   2. AB 1968 (Low), would require that a person who has been taken into custody, assessed, and admitted to a designated facility because he or she is a danger to himself, herself, or others, as a result of a mental health disorder more than once within a one-year period to be prohibited from owning a firearm for the remainder of his or her life. AB 1968 is awaiting hearing in the Assembly Appropriations Committee.
      
3. Prior Legislation:
   
   1. AB 785 (Jones-Sawyer), Chapter 784, Statutes of 2017, added two hate crimes to the list of misdemeanors that result in a ban on the right to possess a firearm for 10 years.
      
   2. AB 1084 (Melendez), of the 2013-2014 Legislative Session would have increased the penalties to two, three, or four years in the state prison when an individual possesses a gun, who has been prohibited from gun possession because the person has been held for specified mental health findings. AB 1084 failed passage in the Assembly Public Safety Committee.
      
   3. SB 580 (Jackson), of the 2013-2014 Legislative Session, would have would appropriated the sum of $5,000,000 from the FSESF to the DOJ to contract with local law enforcement agencies to reduce the backlog of individuals who are identified by APPS as illegally possessing firearms. SB 580 died in the Assembly Committee on Appropriations.
      
   4. SB 140 (Leno), Chapter 2, Statutes of 2013, appropriated $24 million from the DROS Special Account to the DOJ for costs associated with regulatory and enforcement of illegal possession of firearms by prohibited persons.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Brady Campaign, California Chapters
California Protective Parents Association
California Partnership to End Domestic Violence
Giffords Law Center to Prevent Gun Violence
2 private individuals

Opposition

American Civil Liberties Union of California

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744