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New Law Ensures that Domestic Violence Offenders Surrender All of Their Firearms

Effective January 1, 2018, once a person is convicted of domestic violence — whether as a misdemeanor or as a felony — he must relinquish all of the guns that he owns.[i]

Passed in November 2016 as Proposition 63, this new law ensures that domestic violence offenders actually give up their guns upon conviction.

Courts used to order domestic violence offenders to give up their guns only if there was reason to believe that an offender owned a firearm, and, even then, only as part of a post-conviction, criminal protective order.[ii]

Now Courts are required — as soon as someone is convicted of domestic violence — to assign a probation officer to investigate whether an offender owns any firearms. The investigation is automatic and will occur regardless of whether a protective order is issued or whether the Court has reason to suspect an offender owns a firearm.[iii]

To be sure, people convicted of domestic violence have long been prohibited from owning firearms.[iv]  The purpose of the prohibition is to keep guns out of the hands out of people who, because of their convictions, are considered more likely to engage in a subsequent act of violence.

Although offenders are routinely ordered to turn in their guns, and informed of the consequences if they do not, before Proposition 63 there was no mechanism in place to identify all firearms in an offender’s possession.

Without an independent inventory mechanism in place, offenders could circumvent the firearm prohibition and keep their guns, so long as they weren’t caught doing so.[v]

blog.dv.domesticviolencefirearms.occriminaldefenseI’m sure he’ll give up all of his guns if we just ask him to. … right ….

The newly enacted Proposition 63 not only ensures that domestic violence offenders actually relinquish their firearms, it also requires them to provide the Court with proof that they did so.[vi]

So, Exactly How Do I Go About Surrendering My Firearms?

Under Proposition 63, once convicted of a domestic violence offense, the probation department will determine whether an offender owns any firearms.[vii] The offender, in turn, must then designate someone to dispose of his firearms on his behalf.[viii] The offender can name police or a third party (who is not disqualified from possessing a gun) as his designee.[ix]

At the offender’s instruction, the third party charged with disposing of the firearms must surrender them to police, sell them to a licensed dealer, or store them with a firearms dealer (for a period of 10 years[x]).[xi] Once the third party has disposed of the firearms, he or she must submit to the Court a receipt indicating that the firearms were properly received.[xii] The firearms must be disposed of within 5 days if the offender is out of custody; 14 days if he is in custody.[xiii]

If an offender fails to relinquish his firearms, the Court can issue a warrant to seize the offender’s guns.[xiv]

Conclusion

Now, in addition to completing a batterer’s treatment program, paying various fines and fees, and being subject to a criminal protective order,[xv] a person, upon suffering a conviction for domestic violence, must also have all of his firearms inventoried and surrendered, and provide proof to the Court that he has done so.

[i] Note: The requirement to relinquish one’s firearms upon conviction is not limited only to domestic violence offenses; it applies also to any felony offense as well as certain enumerated misdemeanors. Penal Code §§29810(a)(1), 29805(a), 29800.

[ii] California Rule of Court 4.700(a), (c); Judicial Council Form CR-160; Penal Code §§1203.097(a)(2), 273.5(j).

[iii] Penal Code §29810(c)(1).

[iv] Penal Code §§29805(a), 136.2(i)(1), 1203.097(a)(2), 273.5(j); California Rule of Court 4.700.

[v] http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-updates-california-other-states-not-doing-1474566429-htmlstory.html.

[vi] Penal Code §29810(a)(3).

[vii] Penal Code 29810(c)(3).

[viii] Penal Code §§29810(a)(3), (b)(4).

[ix] Penal Code §§29810(a)(3).

[x] Penal Code §29805(a). See also, Penal Code §273.5(j), 136.2(i)(1), 1203.097(a)(2).

[xi] Penal Code §§29810(a)(3), (b)(4).

[xii] Penal Code §29810(b)(6).

[xiii] Penal Code §§29810(d)(1), (e)(1).

[xiv] Penal Code §29810(c)(4).

[xv] Penal Code §§1203.97(a)(2), 136.2(i)(1), 273.5(j).

Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.