BILL NUMBER: AB 88 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 1, 2005
INTRODUCED BY Assembly Member Koretz
JANUARY 6, 2005
An act to amend Section 12280 of the Penal Code, relating to
assault weapons.
LEGISLATIVE COUNSEL'S DIGEST
AB 88, as introduced, Koretz. Assault Weapons.
Existing law provides penalties for violations of specified
provisions involving assault weapons and .50 BMG rifles, as
specified.
This bill would provide that, subject to specified exceptions, with regard
to specified prohibited conduct, there would be a separate and distinct
offense for each assault weapon, .50 BMG rifle, or frame or receiver. as
specified.
By changing the definition 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
Note: Proposed changes to existing law are shown in the following "enactment"
section of the bill. Proposed additions are shown in bold italics so that
they are readily apparent.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12280 of the Penal Code is amended to read:
12280. (a) (1) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison for four, six,
or eight years.
(2) In addition and consecutive to the punishment
imposed under paragraph (1), any person who transfers, lends, sells,
or gives any assault weapon or any .50 BMG rifle to a minor in
violation of paragraph (1) shall receive an enhancement of one year.
(3) For Except in the case of a
first violation involving not more than two firearms as provided in
subdivisions (b) and (c), for purposes of this section, if more
than one assault weapon or.50 BMG rifle or the frame or
receiver of the same is involved in any violation of this
section, there shall be a distinct and separate offense for each.
(b) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, is punishable by
imprisonment in a county jail for a period not exceeding one year, or
by imprisonment in the state prison. However, a first violation of
these provisions is punishable by a fine not exceeding five hundred
dollars ($500), if the person was found in possession of no more than
two firearms in compliance with subdivision (c) of Section 12285 and
the person meets all of the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined an assault weapon
pursuant to Section 12276, 12276.1, or 12276.5.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to subdivision (a) of Section 12285.
(4) The person relinquished the firearm pursuant to Section 12288,
in which case the assault weapon shall be destroyed pursuant to
Section 12028.
(c) Any person who, within this state, possesses any .50 BMG
rifle, except as provided in this chapter, is punishable by a fine of
one thousand dollars ($1,000), imprisonment in a county jail for a
period not to exceed one year, or by both that fine and imprisonment.
However, a first violation of these provisions is punishable by a
fine not exceeding five hundred dollars ($500), if the person was
found in possession of no more than two firearms in compliance with
subdivision (a) of Section 12285 and the person meets the conditions
set forth in paragraphs (1), (2), and (3):
(1) The person proves that he or she lawfully possessed the .50
BMG rifle prior to January 1, 2005.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the .50 BMG rifle
within one year following the end of the .50 BMG rifle registration
period established pursuant to subdivision (a) of Section 12285.
(4) Firearms seized pursuant to this subdivision from persons who
meet all of the conditions set forth in paragraphs (1), (2), and (3)
shall be returned unless the court finds in the interest of public
safety, after notice and hearing, that the .50 BMG rifle should be
destroyed pursuant to Section 12028. Firearms seized from persons who
do not meet the conditions set forth in paragraphs (1), (2), and (3)
shall be destroyed pursuant to Section 12028.
(d) Notwithstanding Section 654 or any other provision of law, any
person who commits another crime while violating this section may
receive an additional, consecutive punishment of one year for
violating this section in addition and consecutive to the punishment,
including enhancements, which is prescribed for the other crime.
(e) Subdivisions (a), (b), and (c) shall not apply to the sale to,
purchase by, importation of, or possession of assault weapons or a .
50 BMG rifle by the Department of Justice, police departments,
sheriffs' offices, marshals' offices, the Youth and Adult Corrections
Agency, the Department of the California Highway Patrol, district
attorneys' offices, Department of Fish and Game, Department of Parks
and Recreation, or the military or naval forces of this state or of
the United States, or any federal law enforcement agency for use in
the discharge of their official duties.
(f) (1) Subdivisions (b) and (c) shall not prohibit the possession
or use of assault weapons or a .50 BMG rifle by sworn peace officer
members of those agencies specified in subdivision (e) for law
enforcement purposes, whether on or off duty.
(2) Subdivisions (a), (b), and (c) shall not prohibit the
delivery, transfer, or sale of an assault weapon or a .50 BMG rifle
to, or the possession of an assault weapon or a .50 BMG rifle by, a
sworn peace officer member of an agency specified in subdivision (e),
provided that the peace officer is authorized by his or her employer
to possess or receive the assault weapon or the .50 BMG rifle.
Required authorization is defined as verifiable written certification
from the head of the agency, identifying the recipient or possessor
of the assault weapon as a peace officer and authorizing him or her
to receive or possess the specific assault weapon. For this exemption
to apply, in the case of a peace officer who possesses or receives
the assault weapon prior to January 1, 2002, the officer shall
register the assault weapon pursuant to Section 12285 on or before
April 1, 2002; in the case of a peace officer who possesses or
receives the assault weapon on or after January 1, 2002, the officer
shall register the assault weapon pursuant to Section 12285 not later
than 90 days after possession or receipt. In the case of a peace
officer who possesses or receives a .50 BMG rifle on or before
January 1, 2005, the officer shall register the .50 BMG rifle on or
before April 30, 2006. In the case of a peace officer who possesses
or receives a .50 BMG rifle after January 1, 2005, the officer shall
register the .50 BMG rifle not later than one year after possession
or receipt. The peace officer must include with the registration, a
copy of the authorization required pursuant to this paragraph.
(3) Nothing in this section shall be construed to limit or
prohibit the delivery, transfer, or sale of an assault weapon or a .
50 BMG rifle to, or the possession of an assault weapon or a .50 BMG
rifle by, a member of a federal law enforcement agency provided that
person is authorized by the employing agency to possess the assault
weapon or .50 BMG rifle.
(g) Subdivision (b) shall not apply to the possession of an
assault weapon during the 90-day period immediately after the date it
was specified as an assault weapon pursuant to Section 12276.5, or
during the one-year period after the date it was defined as an
assault weapon pursuant to Section 12276.1, if all of the following
are applicable:
(1) The person is eligible under this chapter to register the
particular assault weapon.
(2) The person lawfully possessed the particular assault weapon
prior to the date it was specified as an assault weapon pursuant to
Section 12276.5, or prior to the date it was defined as an assault
weapon pursuant to Section 12276.1.
(3) The person is otherwise in compliance with this chapter.
(h) Subdivisions (a), (b), and (c) shall not apply to the
manufacture by persons who are issued permits pursuant to Section
12287 of assault weapons or .50 BMG rifles for sale to the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Entities outside the state who have, in effect, a federal
firearms dealer's license solely for the purpose of distribution to
an entity listed in paragraphs (4) to (6), inclusive.
(4) Federal military and law enforcement agencies.
(5) Law enforcement and military agencies of other states.
(6) Foreign governments and agencies approved by the United States
State Department.
(i) Subdivision (a) shall not apply to a person who is the
executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) which is
disposed of as authorized by the probate court, if the disposition is
otherwise permitted by this chapter.
(j) Subdivisions (b) and (c) shall not apply to a person who is
the executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) if the assault
weapon or .50 BMG rifle is possessed at a place set forth in
paragraph (1) of subdivision (c) of Section 12285 or as authorized by
the probate court.
(k) Subdivision (a) shall not apply to:
(1) A person who lawfully possesses and has registered an assault
weapon or .50 BMG rifle pursuant to this chapter who lends that
assault weapon or .50 BMG rifle to another if all the following
apply:
(A) The person to whom the assault weapon or .50 BMG rifle is lent
is 18 years of age or over and is not in a class of persons
prohibited from possessing firearms by virtue of Section 12021 or
12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code.
(B) The person to whom the assault weapon or .50 BMG rifle is lent
remains in the presence of the registered possessor of the assault
weapon or .50 BMG rifle.
(C) The assault weapon or .50 BMG rifle is possessed at any of the
following locations:
(i) While on a target range that holds a regulatory or business
license for the purpose of practicing shooting at that target range.
(ii) While on the premises of a target range of a public or
private club or organization organized for the purpose of practicing
shooting at targets.
(iii) While attending any exhibition, display, or educational
project that is about firearms and that is sponsored by, conducted
under the auspices of, or approved by a law enforcement agency or a
nationally or state recognized entity that fosters proficiency in, or
promotes education about, firearms.
(2) The return of an assault weapon or .50 BMG rifle to the
registered possessor, or the lawful possessor, which is lent by the
same pursuant to paragraph (1).
(l) Subdivisions (b) and (c) shall not apply to the possession of
an assault weapon or .50 BMG rifle by a person to whom an assault
weapon or .50 BMG rifle is lent pursuant to subdivision (k).
(m) Subdivisions (a), (b), and (c) shall not apply to the
possession and importation of an assault weapon or a .50 BMG rifle
into this state by a nonresident if all of the following conditions
are met:
(1) The person is attending or going directly to or coming
directly from an organized competitive match or league competition
that involves the use of an assault weapon or a .50 BMG rifle.
(2) The competition or match is conducted on the premises of one
of the following:
(A) A target range that holds a regulatory or business license for
the purpose of practicing shooting at that target range.
(B) A target range of a public or private club or organization
that is organized for the purpose of practicing shooting at targets.
(3) The match or competition is sponsored by, conducted under the
auspices of, or approved by, a law enforcement agency or a nationally
or state recognized entity that fosters proficiency in, or promotes
education about, firearms.
(4) The assault weapon or .50 BMG rifle is transported in
accordance with Section 12026.1 or 12026.2.
(5) The person is 18 years of age or over and is not in a class of
persons prohibited from possessing firearms by virtue of Section
12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare
and Institutions Code.
(n) Subdivisions, (b) and (c) shall not apply to any of the
following persons:
(1) A person acting in accordance with Section 12286 or 12287.
(2) A person who has a permit to possess an assault weapon or a .
50 BMG rifle issued pursuant to Section 12286 or 12287 when he or she
is acting in accordance with Section 12285, 12286, or 12287.
(o) Subdivisions (a), (b), and (c) shall not apply to any of the
following persons:
(1) A person acting in accordance with Section 12285.
(2) A person acting in accordance with Section 12286, 12287, or
12290.
(p) Subdivisions (b) and (c) shall not apply to the registered
owner of an assault weapon or a .50 BMG rifle possessing that firearm
in accordance with subdivision (c) of Section 12285.
(q) Subdivision (a) shall not apply to the importation into this
state of an assault weapon or a .50 BMG rifle by the registered owner
of that assault weapon or a .50 BMG rifle, if it is in accordance
with the provisions of subdivision (c) of Section 12285.
(r) Subdivision (a) shall not apply during the first 180 days of
the 2005 calendar year to the importation into this state of a .50
BMG rifle by a person who lawfully possessed that .50 BMG rifle in
this state prior to January 1, 2005.
(s) Subdivision (c) shall not apply to the possession of a .50 BMG
rifle that is not defined or specified as an assault weapon pursuant
to this chapter, by any person prior to May 1, 2006 if all of the
following are applicable:
(1) The person is eligible under this chapter to register that .50
BMG rifle.
(2) The person lawfully possessed the .50 BMG rifle prior to
January 1, 2005.
(3) The person is otherwise in compliance with this chapter.
(t) Subdivisions (a), (b) and (c) shall not apply to the sale of
assault weapons or .50 BMG rifles by persons who are issued permits
pursuant to Section 12287 to any of the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Federal military and law enforcement agencies.
(4) Law enforcement and military agencies of other states.
(5) Foreign governments and agencies approved by the United States
State Department.
(6) Officers described in subdivision (f) who are authorized to
possess assault weapons or .50 BMG rifles pursuant to subdivision (f).
(u) As used in this chapter, the date a firearm is an assault
weapon is the earliest of the following:
(1) The effective date of an amendment to Section 12276 that adds
the designation of the specified firearm.
(2) The effective date of the list promulgated pursuant to Section
12276.5 that adds or changes the designation of the specified
firearm.
(3) The operative date of Section 12276.1, as specified in
subdivision (d) of that section.
SEC. 2.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be
incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.