(a) As used in this section, the
following definitions shall apply:
(1) “Locking device” means a device that is
designed to prevent the firearm from functioning and
when applied to the firearm, renders the firearm
inoperable.
(2) “Child” means a person under the age of 18
years.
(3) “Off-premises” means premises other than
the premises where the firearm was stored.
(4) “Locked container” has the same meaning
as set forth in subdivision (d) of Section Penal Code 12026.2.
(b) A person who keeps a pistol, revolver, or
other firearm capable of being concealed upon the
person, loaded or unloaded, within any premises that
are under his or her custody or control and he or she
knows or reasonably should know that a child is likely
to gain access to that firearm without the permission of
the child’s parent or legal guardian and the child
obtains access to that firearm and thereafter carries that
firearm off-premises, shall be punished by
imprisonment in a county jail not exceeding one year,
by a fine not exceeding one thousand dollars ($1,000),
or by both that imprisonment and fine.
(c) A person who keeps any firearm within any
premises that is under his or her custody or control and
he or she knows or reasonably should know that a child
is likely to gain access to the firearm without the
permission of the child’s parent or legal guardian and
the child obtains access to the firearm and thereafter
carries that firearm off-premises to any public or
private preschool, elementary school, middle school,
high school, or to any school-sponsored event, activity,
or performance whether occurring on school grounds or
elsewhere, shall be punished by imprisonment in a
county jail not exceeding one year, by a fine not
exceeding five thousand dollars ($5,000), or by both
that imprisonment and fine.
(d) A pistol, revolver, or other firearm capable
of being concealed upon the person that a child gains
access to and carries off-premises in violation of this
section shall be deemed “used in the commission of any
misdemeanor as provided in this code or any felony”
for the purpose of subdivision (b) of Section
Penal Code 12028
regarding the authority to confiscate firearms and other
deadly weapons as a nuisance.
(e) This section shall not apply if any one of the
following circumstances exists:
(1) The child obtains the firearm as a result of
an illegal entry into any premises by any person.
(2) The firearm is kept in a locked container or
in a location that a reasonable person would believe to
be secure.
(3) The firearm is locked with a locking device
that has rendered the firearm inoperable.
(4) The firearm is carried on the person within
such a close range that the individual can readily
retrieve and use the firearm as if carried on the person.
(5) The person is a peace officer or a member of
the Armed Forces or National Guard and the child
obtains the firearm during, or incidental to, the
performance of the person’s duties.
(6) The child obtains, or obtains and discharges,
the firearm in a lawful act of self-defense or defense of
another person or persons.
(7) The person who keeps a firearm has no
reasonable expectation, based on objective facts and
circumstances, that a child is likely to be present on the
premises.
(f) If the person who allegedly violated this
section is the parent or guardian of a child who is
injured or who dies as the result of an accidental
shooting, the district attorney shall consider, among
other factors, the impact of the injury or death on the
person alleged to have violated this section when
deciding whether to prosecute the alleged violation. It
is the Legislature’s intent that a parent or guardian of a
child who is injured or who dies as the result of an
accidental shooting shall be prosecuted only in those
instances in which the parent or guardian behaved in a
grossly negligent manner or where similarly egregious
circumstances exist. This subdivision shall not
otherwise restrict, in any manner, the factors that a
district attorney may consider when deciding whether to
prosecute alleged violations of this section.
(g) If the person who allegedly violated this
section is the parent or guardian of a child who is
injured or who dies as the result of an accidental
shooting, no arrest of the person for the alleged
violation of this section shall occur until at least seven
days after the date upon which the accidental shooting
occurred.
In addition to the limitation contained in this
subdivision, a law enforcement officer shall consider the
health status of a child who suffers great bodily injury
as the result of an accidental shooting prior to arresting
a person for a violation of this section, if the person to
be arrested is the parent or guardian of the injured child.
The intent of this subdivision is to encourage law
enforcement officials to delay the arrest of a parent or
guardian of a seriously injured child while the child
remains on life-support equipment or is in a similarly
critical medical condition.
(h)
(1) The fact that the person who allegedly
violated this section attended a firearm safety training
course prior to the purchase of the firearm that is
obtained by a child in violation of this section shall be
considered a mitigating factor by a district attorney
when he or she is deciding whether to prosecute the
alleged violation.
(2) In any action or trial commenced under this
section, the fact that the person who allegedly violated
this section attended a firearm safety training course
prior to the purchase of the firearm that is obtained by a
child in violation of this section, shall be admissible.
(i) Every person licensed under Section
Penal Code 12071
shall post within the licensed premises the notice
required by paragraph (7) of subdivision (b) of that
section, disclosing the duty imposed by this section
upon any person who keeps any firearm.
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Raymond Lutz - 09 May 2008