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Updated 1/8/2018 – Briefing Re: Implementation of Proposition 63 – Amends PC section 29810

Submitted by on January 8, 2018 – 11:14No Comment

First published January 5, 2018 | Updated January 8, 2018

The procedure set forth in Penal Code section 29810 does not contemplate “immediate sentencing” in felony or misdemeanor cases dealing with prohibited persons.  The statute contemplates that sentencing will take place within statutory time periods.

The statute requires the judge, after the plea is entered or verdict is entered, to give the defendant notice of the firearms prohibition and the disclosure requirement.  The defendant, if in custody, then has fourteen days from the time of the plea being entered (but prior to sentencing) to complete and submit the form (5 days if out of custody).  Then, Probation must report to the judge about compliance, and the judge must make findings at the time of sentencing and, if PC exists to believe there is a firearm which needs to be seized, must refer it to the DA for appropriate action.

In theory, the 5 day period gives the out-of-custody defendant sufficient time to transfer/dispose of any firearms he owns/possesses, so he can truthfully declare on the form that he does not own or possess any firearms and avoid any 5th Amendment problem.  It’s more tricky with in-custody defendants (although they have 14 days), because their phone calls from jail are recorded, and if they direct anyone on the outside to dispose of any firearms, that will be recorded and could form a basis for a criminal prosecution.  Additionally, defense counsel cannot legally or ethically assist the client with facilitating the disposal/relinquishment of a unlawfully possessed firearms.

At this point, I am suggesting that defendants who are going to plead to crimes rendering them “prohibited persons,” in terms of firearms possession/ownership go ahead and enter their pleas without asserting any objections at the time of the plea.  I’m suggesting they ask that sentencing be set out within the statutory time period (not waive statutory time for sentencing), and I’m suggesting that they waive the right to a full probation report and suggest that the court refer it to Probation for a “mini-report,” limited to PC 29810 compliance and custody credits (and restitution, if applicable).  If the client would have received a “credit for time served” sentence but for the need to comply with PC 29810, counsel can/should advocate for OR release pending sentencing (or supervised OR).

I am suggesting that assigned counsel advise the client of his or her statutory duties and statutory and constitutional rights with regard to the disclosure form, and advise the client:

  1. That the Prohibited Persons Disclosure Form need not be submitted at the time of the plea. The client is statutorily entitled to a proscribed period of time in which to submit the form to Probation. (5/14 days)  And there is no punishment for submitting the form late; although the defendant cannot be sentenced until the form has been received by Probation and the court apprised of the defendant’s compliance.
  2. That the law does not require completion of the portions of the form pertaining to immigration and citizenship, and failure to provide that information (protected under state law) is not punishable as a crime, or a violation of probation, or as criminal contempt.
  3. That the firearms disclosure requirement may implicate the privilege against self-incrimination with regard to prosecution by the feds for any firearm related offense and, if client is not a U.S. citizen, can result in immigration consequences as well as federal prosecution.
  4. That it is up to the client whether to assert or waive his rights and  privileges, but a waiver must be knowing, intelligent, and voluntary. (In my opinion, a waiver compelled by the threat of criminal prosecution, criminal contempt, or threats by judges that a search warrant will issue unless the defendant completes that portion of the form is coerced.  It is not voluntary, and it is not valid.  The same goes for threats by the People to move to withdraw from the plea bargain unless the defendant completes all portions of the disclosure form.)
  5. That, at the time the form is due to be submitted to Probation (5/14 days), if the client honestly does not own or possess any firearms (or have access to any firearms), there is no issue with self-incrimination, and the client can complete Section B of the form, truthfully declaring that he owns/possesses/controls no firearms.

In my opinion, privileges and rights should be asserted at the time of sentencing, to preserve a constitutional defense to an infraction prosecution.  The client must be advised that, if he asserts his 5th Amendment rights,  the court can refer the matter to the appropriate agency for possible prosecution for an infraction, punishable by $100, which would likely be defensible on constitutional grounds.  He also needs to understand that, as soon as he’s placed on probation (or when he is released on mandatory supervision, probation, or parole), he, his home, his vehicle, and his belongings can be searched at any time without a warrant, probable cause or reasonable suspicion, and if there ARE guns or other contraband in his possession/control, he can be prosecuted for any crimes detected during probation searches, including firearms possession by a prohibited person, a felony.

Laura Arnold
Deputy Public Defender, Riverside County
Co-Chair, CPDA  Amicus Committee


January 5, 2018

A few days ago, California courts began implementing Prop 63, which amended PC 29810, to require defendants who, as a result of a criminal conviction are prohibited from possession firearms and ammunition, to, among other things, disclose, under penalty of perjury, specified information via completion of a “Prohibited Persons Relinquishment Form,” developed by the California DOJ.  The form was revised in July, 2017, and is now being used in California courts.  I have attached it.

The disclosures compelled by the form exceed those required by statute; specifically, requiring defendants and their designees to disclose, on penalty of perjury, their place of birth, citizenship, and immigration status.  This violates Government Code section 7284.6, which prohibits any California law enforcement agency from using agency resources to inquire into any individual’s immigration status.  Additionally, it subjects these individuals to adverse action by federal immigration authorities.

In addition, as applied to individuals who, prior to the instant offense conviction, were already prohibited from firearm ownership/possession due to qualifying prior convictions, the form (and the statute) compels self-incrimination, in violation of the Fifth Amendment.

While the aforementioned legal and constitutional issues do not equally prejudice to all defendants (i.e. those who are U.S. citizens and who do not possess firearms and/or were not prohibited persons prior to their instant convictions), a practice of completing the forms for some clients and not for others serves to “flag” noncitizens and/or those who may currently be in violation of the law due to prohibited firearm possession/ownership.

Various organizations are preparing briefs challenging the aforementioned compelled disclosures, and those briefs will be shared with you, via this CPDA website, as they become available.

Laura Arnold
Deputy Public Defender, Riverside County
Co-Chair, CPDA  Amicus Committee


Document #1 – § 29810. Persons subject to firearm possession restrictions upon conviction for specified offenses; relinquishment of firearms; use of Prohibited Persons Relinquishment Form. Effective: January 1, 2018

Download the PDF file .

DOWNLOAD a copy of the document in PDF format: 29810 Persons subject to firearm possession restrictions upon.pdf

Document #2 – California DOJ Form: Prohibited Persons Relinquishment Form & Instructions

Download the PDF file .

DOWNLOAD a copy of the document in PDF format: 2018-Prohibited-persons-relinquishment-form.pdf


Download the PDF file .

DOWNLOAD a copy of the document in MS Word formatOpp2PC29810DisclosuresFill-In-Blank5.doc


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