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View Full Version : Flowchart Typo, or am I reading this wrong?


franklinarmory
01-08-2010, 6:44 PM
Okay, so this is my first post with Calguns, but that doesn't mean I haven't been paying attention. I was reading through the Flow Chart and under the "Harrott V. County of Kings" section it concludes with a reference to subdivision (h) of 12276.5.

The problem is that my copy of the Penal Code only goes to 12276.5(C)! :eek:

Did any new 2010 laws change the PC, or am I simply misreading the flow chart? :online2long:

ke6guj
01-08-2010, 6:50 PM
As far as I can tell, that would be a typo in the ruling from the court. AFAIK, no sections of code have been physically removed from the PC in a while.

That reminds me, I wonder how the committee that is cleaning up and reorganizing the PC is doing?

hmm, I even see CADOJ refering to 12276.5(h) , http://ag.ca.gov/firearms/regs/chapter40.pdf

Note: Authority cited: Section 12276.5(h), Penal Code. Reference: Section 12276(e), Penal Code.

edit:
I was mistaken, 12276.5 used to have an (h), but it was removed, probably in 2007 when they removed the AG's ability to list new AWs.

Here is the old code, http://www.calgunlaws.com/index.php?option=com_content&view=article&id=158&Itemid=55

Cal. Penal Code section 12276.5
Written by Administrator
Monday, 29 November 1999 16:00
CHAPTER 2.3. ROBERTI-ROOS ASSAULT WEAPONS CONTROL ACT OF 1989
Article 1. General Provisions

Temporary Suspension of Manufacture, Sale, Distriubtion, Transportation, Importation, or Lending of Alleged Assault Weapon; Distribution Description

(a) Upon request by the Attorney General filed in a verified petition in a superior court of a county with a population of more than 1,000,000, the superior court shall issue a declaration of temporary suspension of the manufacture, sale, distribution, transportation, or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Section 12276 because the firearm is either of the following:
(1) Another model by the same manufacturer or a copy by another manufacturer of an assault weapon listed in subdivision (a), (b), or (c) of Section 12276 which is identical to one of the assault weapons listed in those subdivisions except for slight modifications or enhancements including, but not limited to: a folding or retractable stock; adjustable sight; case deflector for left-handed shooters; shorter barrel; wooden, plastic or metal stock; larger magazine size; different caliber provided that the caliber exceeds .22 rimfire; or bayonet mount. The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph.

(2) A firearm first manufactured or sold to the general public in California after June 1, 1989, which has been redesigned, renamed, or renumbered from one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, or which is manufactured or sold by another company under a licensing agreement to manufacture or sell one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, regardless of the company of production or distribution, or the country of origin.

(b) Upon the issuance of a declaration of temporary suspension by the superior court and after the Attorney General has completed the notice requirements of subdivisions (c) and (d), the provisions of subdivision (a) of Section 12280 shall apply with respect to those weapons.

(c) Upon declaration of temporary suspension, the Attorney General shall immediately notify all police, sheriffs, district attorneys, and those requesting notice pursuant to subdivision (d), shall notify industry and association publications for those who manufacture, sell, or use firearms, and shall publish notice in not less than 10 newspapers of general circulation in geographically diverse sections of the state of the fact that the declaration has been issued.

(d) The Attorney General shall maintain a list of any persons who request to receive notice of any declaration of temporary suspension and shall furnish notice under subdivision (c) to all these persons immediately upon a superior court declaration. Notice shall also be furnished by the Attorney General by certified mail, return receipt requested (or substantial equivalent if the person who is to receive the notice resides outside the United States), to any known manufacturer and California distributor of the weapon which is the subject of the temporary suspension order or their California statutory agent for service. The notice shall be deemed effective upon mailing.

(e) After issuing a declaration of temporary suspension under this section, the superior court shall set a date for hearing on a permanent declaration that the weapon is an assault weapon. The hearing shall be set no later than 30 days from the date of issuance of the declaration of temporary suspension. The hearing may be continued for good cause thereafter. Any manufacturer or California distributor of the weapon which is the subject of the temporary suspension order has the right, within 20 days of notification of the issuance of the order, to intervene in the action. Any manufacturer or California distributor who fails to timely exercise its right of intervention, or any other person who manufactures, sells, or owns the assault weapon may, in the court's discretion, thereafter join the action as amicus curiae.

(f) At the hearing, the burden of proof is upon the Attorney General to show by a preponderance of evidence that the weapon which is the subject of the declaration of temporary suspension is an assault weapon. If the court finds the weapon to be an assault weapon, it shall issue a declaration that it is an assault weapon under Section 12276. Any party to the matter may appeal the court's decision. A declaration that the weapon is an assault weapon shall remain in effect during the pendency of the appeal unless ordered otherwise by the appellate court.

(g) The Attorney General shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Section 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter. Those law enforcement agencies shall make the description available to all agency personnel.

(h) The Attorney General shall promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.

(i) The Attorney General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.

franklinarmory
01-08-2010, 7:39 PM
Cool! I figured as much. I just didn't have an older reference copy. Thank you for checking that out.

Since half of all Ca LEOs are using this chart to figure which way is up, should I contact whomever maintains the flow chart to let them know about the change in the PC? I figure Calguns has staked it's rep on presenting the letter of the law to the general public. It great if someone would tidy up that loose end.

BTW, that flow chart is an impressive piece of work! :)

ke6guj
01-08-2010, 7:47 PM
I don't think there is a loose end to tidy up. they are quoting the actual opinion of the court and the court stated 12276.5(h). The fact that there is no longer a 12276.5(h) does not void the opinion.

Librarian
01-08-2010, 7:50 PM
Cool! I figured as much. I just didn't have an older reference copy. Thank you for checking that out.

Since half of all Ca LEOs are using this chart to figure which way is up, should I contact whomever maintains the flow chart to let them know about the change in the PC? I figure Calguns has staked it's rep on presenting the letter of the law to the general public. It great if someone would tidy up that loose end.

BTW, that flow chart is an impressive piece of work! :)

It's already on page 2, upper right, 'Category 2' where it refers to AB 2728.

See also http://wiki.calgunsfoundation.org/index.php/History_of_%27Assault_Weapon%27_laws, http://wiki.calgunsfoundation.org/index.php/Off_List_Lowers_%28OLL/OLR%29

And you can read the thread about the flowchart creation here (http://www.calguns.net/calgunforum/showthread.php?t=82322).

bwiese
01-08-2010, 7:52 PM
BTW, that flow chart is an impressive piece of work! :)

It's been a real success. Not only in utility, but it's actually in many LE agency offices as a reference ;)

REDHORSE
01-08-2010, 7:55 PM
If the flow chart needs updating, please let me know and I will make changes/updates.

hoffmang
01-08-2010, 8:13 PM
The quote of Harrot is exactly accurate and AB-2728 stripped (h) out of the PC which is reflected in the box on the top right. We may want to explicitly state that 12276.5, subdivision (h) was removed by AB-2728.

-Gene

franklinarmory
01-08-2010, 8:19 PM
I don't think there is a loose end to tidy up. they are quoting the actual opinion of the court and the court stated 12276.5(h). The fact that there is no longer a 12276.5(h) does not void the opinion.

I concede the point that it does not void the opinion. But, if ab2728 made 12276.5(h) moot, why quote it? Either way, please don't take my comments as critical. You guys are great!

franklinarmory
01-08-2010, 8:22 PM
The quote of Harrot is exactly accurate and AB-2728 stripped (h) out of the PC which is reflected in the box on the top right. We may want to explicitly state that 12276.5, subdivision (h) was removed by AB-2728.

-Gene

+1...

ke6guj
01-08-2010, 10:12 PM
I concede the point that it does not void the opinion. But, if ab2728 made 12276.5(h) moot, why quote it? Either way, please don't take my comments as critical. You guys are great!

because the opinion of the court was that if they wanted to include variations of a model as AWs, that it had to be included on the list, a list that the AG could add to via a specific subsection of the law. The fact that the ability to list was removed does not void the ruling that it is wasn't specifically listed, it wasn't to be considered a named AW.

The fact that a portion of the second part of that quote has been overtaken by events does not negate the first part of the quote, which is the more important part.

Perhaps the quote can be trimmed slightly to read something like,

...a trial court may not find a semiautomatic firearm a series
assault weapon under section 12276, subdivision (e), unless
the firearm has first been included in the list of series assault
weapons promulgated by the Attorney General ...
but I don't think it is a big deal.

franklinarmory
01-08-2010, 11:23 PM
because the opinion of the court was that if they wanted to include variations of a model as AWs, that it had to be included on the list, a list that the AG could add to via a specific subsection of the law. The fact that the ability to list was removed does not void the ruling that it is wasn't specifically listed, it wasn't to be considered a named AW.

The fact that a portion of the second part of that quote has been overtaken by events does not negate the first part of the quote, which is the more important part.

Perhaps the quote can be trimmed slightly to read something like,


but I don't think it is a big deal.
I agree it's a picayune detail. I just thought I'd add my two cents. :)