There are some big changes in the criminal laws involving gun ownership and sentencing for firearm use, effective January 1, 2018. Two of those changes are outlined below:
Penal Code section 29810
First, Penal Code section 29810 has been amended and takes effect on January 1, 2018. It requires that all defendants who are prohibited from owning firearms must now report all firearms in their possession, ownership or control at the time of their conviction. This report is done by completing a special form called Prohibited Persons Relinquishment Form and giving it to the Probation Department. Failure to timely file the necessary form results in an infraction punishable by a fine not to exceed $100. (PC 29810(c)(5)).
People normally prohibited from owing firearms include people convicted of any felony plus the following misdemeanor convictions – Penal Code sections 240, 241, 242, 243, 243,4, 245, 246.3, 273.5, 273.6, 417, 422 and 646.9.
There are some interesting Fourth and Fifth Amendment issues at play. If the firearm that is being turned over was used in the commission of another crime, a defendant should consult with his lawyer to discuss the ramifications of complying with this law.
Also, there are some immigration issues involved as well, since the form currently asks whether the defendant is a citizen, but Penal Code section 1016.5 specifically prohibits the court from asking a defendant about their immigration status and SB 54 applies that same prohibition to law enforcement.
The law regarding gun enhancements has undergone a big chance. Previously, the gun enhancement was one of the few enhancements that a court could not strike down. That meant if the DA charged a gun enhancement, only the DA could had the power to drop it. That put a lot of power in the DA’s hands when it came time to negotiating sentences. Now, Penal Code section 12022.5(a) has been changed to allow a court to strike down this enhancement at the time of sentencing “in the interests of justice” pursuant to Penal Code section 1385. This is a HUGE opportunity for anyone charged with an offense where a firearm was used. Furthermore, this law can be applied retroactively, so anyone that has previously been convicted under this section can petition the court for re-sentencing. However, there may be question as to whether a court can allow probation when it strikes the gun enhancement – see Penal Code section 12022.53(g) which states that probation shall not be granted for any person convicted under this section.
(a) (a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 30510 or 30515, or a machinegun, as defined in Section 16880, in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years.
(c) The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.
(d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.
(e) When a person is found to have personally used a firearm, an assault weapon, a machinegun, or a .50 BMG rifle, in the commission of a felony or attempted felony as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Sections 18000 and 18005.
(f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one single enhancement.
Furthermore, Penal Code section 12022.53 places limitations on multiple enhancements. The street gang enhancement cannot be applied in addition to the gun enhancement unless the defendant personally used or discharged a firearm in the commission of the offense. The GBI enhancement doesn’t apply in 12022.53(d). Usually, the longest enhancement only applies.