California pawnbrokers, secondhand dealers, and coin dealers have a duty to report property that is purchased, taken in trade, pawned, consigned, or auctioned. Failure to comply with these reporting requirements is a crime (B&P 21628). Other reporting requirements specifically for firearm transfers are also required for pawnbrokers, private persons, and gun sellers.
B&P 21628 Purpose: The purpose of B&P 21628 is to make the tracking of stolen items easier to identify and recover. The law also serves as a deterrent for persons who wish to pawn stolen items as their personal identification is required to sell property at pawnshops and similar secondhand stores.
B&P 21628 Law
To prove that a pawnbroker, secondhand dealer, or coin dealer is in violation of B&P 21628, the district attorney will need to prove beyond a reasonable doubt, that the defendant:
Falls within the definition of a pawnbroker or secondhand dealer, and
He knowingly failed to report a property transfer as required by the law
Pawnbroker & Secondhand Dealer Definition: (a) A "secondhand dealer…,” means and includes any person, co-partnership, firm, or corporation whose business includes buying, selling, trading, taking in pawn, accepting for sale on consignment, accepting for auctioning, or auctioning secondhand tangible personal property. A "secondhand dealer" does not include a "coin dealer" or participants at gun shows or events…, (B&P 21626(a) Abbrev.)
Coin Dealer Defined: A "coin dealer" means any person, firm, partnership, or corporation whose principal business is the buying, selling, and trading of coins, monetized bullion, or commercial grade ingots of gold, or silver, or other precious metals (B&P 21626(b) Abbrev.).
B&P 21628(Abbrev.): Every secondhand dealer or coin dealer… shall report daily, or no later than the next business day excluding weekends and holidays after receipt or purchase of secondhand tangible personal property, to CAPSS, all secondhand tangible personal property, except for firearms, which they have purchased, taken in trade, taken in pawn, accepted for sale on consignment, or accepted for auctioning…. The report shall be legible, prepared in English, completed where applicable, and include only the following information (B&P 21628(a) Abbrev.).
The name and current address of the intended seller or pledger of the property (B&P 21628(1)).
The identification of the intended seller or pledger. The identification of the seller or pledger of the property shall be verified by the person taking the information, who may use technology, including, but not limited to, cameras or software, or both, to obtain information and verify identity remotely. The verification shall be valid if the person taking the information reasonably relies on any one of the following documents, provided that the document is currently valid or has been issued within five years and contains a photograph or description, or both, of the person named on it, and, where applicable, is signed by the person, and bears a serial or other identifying number (B&P 21628(2)):
A passport of the United States.
A driver’s license issued by any state or Canada.
An identification card issued by any state.
An identification card issued by the United States.
A passport from any other country in addition to another item of identification bearing an address.
A property description. The property description shall be a complete and reasonably accurate description of the property, including, but not limited to, the following: serial number, personalized inscriptions, and other identifying marks or symbols, owner-applied numbers, the size, color, material, and, if known by the secondhand dealer, the manufacturer’s pattern name. The property description shall include the brand and model name or number of the item if known to, or reasonably ascertainable by, the secondhand dealer. The property description shall include a plain text description of the item generally accepted by the secondhand industry… (B&P 21628(3)(A) Abbrev.)).
A secondhand dealer shall utilize in the article field either an article field descriptor, the format of which shall be provided by the Department of Justice, or a properly spelled and non-abbreviated plain text descriptor commonly recognized and utilized by the pawn and secondhand dealer industry (B&P 21628(3)(B) Abbrev.).
In the case of the receipt or purchase of a handheld electronic device by a secondhand dealer (i.e., cellphone, pager, etc.), the serial number reported pursuant to subparagraph (A) may be the International Mobile Station Equipment Identity (IMEI), the mobile equipment identifier (MEID), or other unique identifying number assigned to that device by the device manufacturer. If none of these identifying numbers are available by the time period required for reporting pursuant to this subdivision, the report shall be updated with the IMEI, MEID, or other unique identifying number assigned to that device by the device manufacturer as soon as reasonably possible but no later than 10 working days after receipt or purchase of the handheld electronic device (B&P 21628(3)(C) Abbrev. & Summarized)).
A certification by the intended seller or pledger that they are the owner of the property or has the authority of the owner to sell or pledge the property (B&P 21628(4)).
A certification by the intended seller or pledger that to their knowledge and belief the information is true and complete (B&P 21628(5)).
A legible fingerprint taken from the intended seller or pledger, as prescribed by the Department of Justice. This requirement does not apply to a coin dealer, unless required pursuant to local regulation (B&P 21628(6)).
Any person who conducts business as a secondhand dealer at any gun show or event…, outside the jurisdiction that issued the secondhand dealer license…, may be required to submit a duplicate of the transaction report prepared pursuant to this section to the local law enforcement agency where the gun show or event is conducted (B&P 21628(6)(c) Abbrev.).
A report required of a secondhand dealer pursuant to this section shall be transmitted by electronic means to CAPSS by the secondhand dealer (B&P 21628(6)(2)).
For purposes of this subdivision, “item” shall mean any single physical article. However, with respect to a commonly accepted grouping of articles that are purchased as a set, including, but not limited to, a pair of earrings or place settings of china, silverware, or other tableware, “item” shall mean that commonly accepted grouping B&P 21628(7)).
Nothing in this section shall be construed to exempt a person licensed as a firearms dealer pursuant to Sections 26700 to 26915, inclusive, of the Penal Code from the reporting requirements for the delivery of firearms pursuant to Sections 26700 to 26915, inclusive, of the Penal Code (B&P 21628(7)(e)).
This section shall remain in effect only until January 1, 2023, and as of that date is repealed (B&P 21628(7)(f)).
B&P 21628 Penalties
A pawnbroker’s failure to report a property transfer is classified as a misdemeanor crime. A misdemeanor crime is more serious than an infraction, but less serious than a felony.
Jail Sentence: If found guilty of B&P 21628, the defendant could face up to 180 days in a local county jail. A probation sentence, with or without a jail term might be available in some cases (see below).
Note: A failure to report a property transfer by a pawnbroker or secondhand dealer is sometimes charged in connection with the crime of receiving stolen property (PC 496). Receipt of stolen property is a more serious crime than failure to report by a pawnshop owner. For more information, see Receipt of Stolen Property (PC 496).
Probation Sentence: A probation sentence is a period of supervision in lieu of actual jail. A probation sentence in B&P cases is common in failure to report cases, but a probation sentence is never guaranteed. Whether or not the defendant receives a probation sentence in any B&P 21628 case depends largely on the defendant’s criminal history, and the loss, if any, to victims.
Note: A probation sentence in B&P cases is called “summary” probation, which means that the defendant’s probation is monitored by the court, as opposed to a probation officer. Also, a probation sentence is conditioned upon the defendant agreeing to comply with certain “conditions of probation.” If defendant fails to comply with the conditions of probation, then her probation sentence may be terminated, and she might have to serve actual jail time. For more information, see Probation Violations.
Work Release: If the defendant is placed on probation after a conviction for B&P 21628, then the court may order some period of incarceration as a condition of probation; however, incarceration sentences that accompany probation sentences may usually be served alternatively on work release, or house arrest. For more information, see Work Release Explained.
License Revocation: A pawnbroker convicted of a B&P could lose his pawnbroker’s license. The same is true for licensed secondhand dealers and coin dealers who are convicted of failure to report crimes.
Fines: Monetary fines up to $1,000 dollars may be imposed against a person convicted of B&P 21628(a). Additionally, the court could impose court security fees as a penalty. Court security fees are in addition to any court fines.
Additional Penalties: In addition to the jail or probation sentence noted above, if found guilty of B&P 21628, the defendant could face any of the following penalties: civil lawsuits, restitution orders, negative immigration consequences, negative military enlistment consequences, and more.
Note: Failure to comply with the reporting requirements of a pawnbroker, secondhand dealer, or coin dealer is not considered a crime involving moral turpitude, or CIMT. A CIMT is a crime that is considered morally wrong or otherwise involves deceit or dishonesty. Nevertheless, any criminal conviction, even non-CIMT, can trigger negative consequences with military service, immigration status, professional licensing status, family law rights to adopt children, and more. For more information, see Crimes Involving Moral Turpitude.
B&P 21628 Defenses
Every criminal case is different in terms of supporting facts and circumstances; therefore, the defense that might apply to any B&P 21628 case is generally different from one case to another. With that in mind, some defenses lend themselves more often to certain types of cases than others. With failure to report cases, these “common” defenses include, but are not limited to, the following: statute of limitations, insufficient evidence, illegal search and seizure of pawnbroker’s documents, entrapment, coerced confessions, false allegations, defendant does not fit the definition of a pawnbroker or secondhand dealer (see definitions above), and more.
Statute of Limitations: A statute of limitations defense occurs where the defendant is not timely prosecuted. For most B&P 21628 cases the defendant (pawnbroker or secondhand dealer) must be prosecuted within one year of the discovery of her failure to report a property transfer as required by the law. For more information, see Statute of Limitations.
Note: If the prosecuting attorney timely files a violation of B&P 21628 against the defendant, but thereafter, there is an unreasonable delay in actually prosecuting the defendant, then the defendant may have a defense of untimely prosecution within the statute of limitations (See Serna Motion)
Judicial Diversion: Judicial diversion is a legal process whereby the prosecution of a criminal defendant is “diverted” or circumvented. Essentially, the process involves the defendant fulfilling certain probation-like conditions, and if the defendant fulfills those conditions, then his criminal charges are dismissed.
Note: Judicial diversion is not a true defense in the sense that the defendant is completely exonerated; however, where the evidence is fairly strong against the defendant, and where the defendant is permitted by the court to enter judicial diversion, then the defendant might view this as a good option because it results in no criminal record and the pawnbroker or secondhand dealer will be permitted to keep his seller’s license. For more information, see California’s Judicial Diversion (PC 1001.85).
Post-conviction options for B&P cases include the following: withdrawing a guilty plea, set aside the conviction (expungement), appeal the criminal conviction, terminate probation early (PC 1203.3 Motions), and more.
If you or a loved one is charged with the crime of failure to report a property transfer by a pawnbroker, secondhand dealer, or coin dealer (B&P 21628(a)), contact our team of experienced criminal defense lawyers. Our defense lawyers handle all misdemeanor and felony cases in San Bernardino County, including the cities of Highland, Redlands, San Bernardino, Adelanto, Chino, Ontario, Rancho Cucamonga, Yucaipa, Rialto, Fontana, and Victorville. There is no charge for a first-time, in-office consultation. In some cases, we can visit a local jail for a consultation for a small fee (CDC, West Valley Jail, and Glen Helen Jail). Call today!
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