Howard

Penal Code section 1417.6 1 authorizes the destruction of any dangerous weapon used by a defendant in the commission of a crime or possessed by the defendant upon arrest. Unless interpreted otherwise, the section might bar a lawful owner from recovering a stolen gun. We agree with the Attorney General that the statute would offend due process if applied to bar a rightful owner from recovering a stolen weapon. We grant a peremptory writ of mandate to allow petitioner Curtis Howard to seek to prove his right to recover his handgun.

*874 The record before us is sparse, but it does show that as of April 27, 1989, Howard was the registered owner of a handgun with serial No. 5385. Evidently, this is the same handgun mentioned in a November 23, 1990, police report by an off-duty police officer who heard three shots fired and saw Herbert Dean Mayo holding a recently fired gun as several people ran from Mayo. The gun became an exhibit in Mayo’s prosecution for possession of a firearm by a felon, in violation of Penal Code section 12021.

Howard moved for return of his handgun, but the court denied the motion. The court explained that Mayo was a customer of Howard, who was a bail…