Thursday, March 14, 2019

Weapons Law 101: The "Innocent Use" Defense

The "Innocent Use" defense is a legal argument that may apply in cases where someone is accused of possessing an illegal weapon.  To successfully raise the defense, the defendant must convincingly argue that the "weapon" found in his possession is not actually a weapon -- it's a tool used for some "innocent use".

Of course, many common items could be used as weapons, but that doesn't necessarily make them illegal to own or possess.  The prime example is a ball peen hammer.  A ball peen hammer could be used to crack the skull of a rival biker, or it could be used to shape metal.  If a biker is found with a ball peen hammer and he's charged with some weapons-related offense, he might successfully argue that the hammer isn't a weapon, it's a tool.  Hammers have innocent uses (like repairing motorcycles).  Bikers figured out this loophole years ago.  Today, the ball peen hammer is a symbol that is commonly used to identify "outlaw" motorcycle clubs.

Weapon?

The same logic applies to baseball bats.  Obviously, a baseball bat can be used as a brutal weapon.  It can also be used to hit baseballs -- an "innocent use".  If a baseball player is found with a bat and he is charged with the crime of possessing an illegal club, he should be able to defend himself by arguing that, in this context, his bat is not a "weapon".

The "innocent use" argument is a little more complicated than a lot of people realize, though.  In order to raise the defense at trial, the judge must first conclude that the object in question has some innocent use.  Think of the ball peen hammer and the baseball bat -- both of these items are commonly used for innocent purposes.  If the judge agrees that the item may possibly be used for some lawful activity, then the defendant may argue that his hammer is just a tool, or his bat is just a piece of sporting equipment.

But that's not the end of the story.  Just because your object has some innocent use doesn't mean that it's 100% legal to possess it at all times.  If the defendant raises the "innocent use" argument, then the prosecutor must prove beyond a reasonable doubt that the defendant intended to use the object as a weapon.  They may build their case with circumstantial evidence by considering the totality of the circumstances -- when, where and how was the defendant found carrying the item?  If the baseball player was arrested while leaving a baseball game and wearing a baseball uniform, then the context of the situation looks pretty innocent.  If a baseball player is driving around on a Saturday night with a bat behind the seat of his car, it looks less innocent.  If the jury believes that the baseball player intended to use his bat as a weapon, he can still be convicted.

Now, this is the nuance I wanted to explain regarding the "innocent use" defense:  if the item is clearly a weapon (brass knuckles, a cane sword, a baseball bat with a nail through it, etc.), the judge will not allow a defendant to argue "innocent use".  In that case, the prosecutor does NOT need to prove that the defendant actually intended to use the item as a weapon.  Intent is irrelevant.  When the item is clearly a weapon, then the DA only needs to prove that the defendant knew that it was capable of use as a weapon.

There is a common misconception that gets a lot of people into trouble here.  Many people falsely believe that they have a defense to weapons charges if they simply call some illegal weapon a "paperweight" or a "sculpture".  A quick search on Amazon will turn up page after page of brass knuckles mislabeled as "novelty items", "costume jewelry" or "for entertainment purposes only".  In California, those are not valid defenses.  If an object obviously looks like a set of brass knuckles, the judge will not allow the defendant to argue that they were actually something "innocent".  And remember, the DA doesn't even need to prove that the defendant intended to use his brass knuckles as weapons, only that the defendant knew that the item was capable of use as a weapon.

There are many possible defenses to weapons charges.  If you or a loved one has questions about possessing weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Weapons Lawyer

Tuesday, March 12, 2019

Arrested in Catalina -- What to Do Now

If you found this blog, you're probably one of the hundreds of tourists every year who "have too much fun" while visiting Catalina Island.  Hopefully, I can answer some of your questions and give you a better idea of what to expect.

The most commonly-charged offenses on the island include drunk in public, DUI, domestic violence, possession of drugs, assault / battery and fishing violations.

Alcohol-Related Violations

Alcohol-related offenses are treated especially harshly in Avalon.  Local police and prosecutors have really made a concerted effort to maintain their "family friendly" reputation, and they've decided that this includes bringing down the hammer on alcohol offenders.

In most California courts, an arrest for being "drunk in public" means a night in jail and a stern warning.  In Catalina, though, you're looking at probation, CalTrans labor or some other community service, fines, mandatory alcohol counseling or AA meetings, and whatever onerous terms they can think to impose.

And remember, golf carts are considered "vehicles" under California law.  If you drink alcohol or consume drugs before operating an electric cart, you can be arrested for DUI.  These types of cases are common on the island.

Fishing Violations

Fishing laws are also a minefield for visitors.  Catalina Island is surrounded by a checkerboard of "marine life protected areas".  These sanctuaries are not marked and wardens do not issue warnings.  If you drift across the imaginary line into one of the protected areas, agents from the Dept of Fish & Wildlife will issue citations.  They will board your boat and search your cooler for contraband species and undersized fish.  You will be criminally prosecuted for every ticky tacky offense that they uncover, regardless of whether or not you knew that you were breaking the rules.
Possession of unidentifiable fish fillets are a big violation that snares a lot well-meaning anglers.  If you clean your fish at sea, remember to leave a 1" square of skin attached so that wardens can identify the species.

Possession of abalone can also be a major headache for divers around Catalina.  The minimum fine for possession of a single abalone is $10,000.  Once all the mandatory fees and court costs are included, the minimum fine jumps to over $60,000 for a first offense.  That's the MINIMUM.  Luckily, we have some tricks for negotiating these cases down to less than the minimum in most cases.

Logistics

The tiny courthouse on Catalina Island is open every other Friday, weather permitting.  Most of the week, the building is dark and empty.  They do not store any files on site.  If you appear in court on a date when they were not expecting you, they will not be able to help you.

To schedule a court appearance, you (or your attorney) must appear at the courthouse in Long Beach and coordinate with the clerks and prosecutors there to add your case onto the Catalina calendar for a date that is convenient for all parties.  Failure to follow all the appropriate steps will result in a wasted trip.

To make matters even more frustrating, cases on Catalina are often delayed or filed sometime after the date listed on your citation.  When that happens, you might spend the time and money to travel all the way back to Catalina, only to find out that your case has been rescheduled for next month.  Your case will not simply be dismissed.

If you've been cited or arrested while visiting Catalina Island, a private attorney (such as myself) can attend your court hearings without you being personally present in most cases.  There's no sense in traveling all the way back to the island for a series of routine appearances.  Let me save you the time, expense and hassle by appearing for you.  I can receive copies of police reports, negotiate with the DA and work to secure the best outcome possible for your case.

If you or a loved one was cited or arrested on Catalina Island, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Thursday, February 21, 2019

Are Cannons Legal in California?

Have you ever thought about building a cannon in your garage?  Me too.  Never mind why.

And that got me thinking about the laws in California.  Intuition says that building a cannon can't be legal, but I wasn't sure which specific law(s) a homemade cannon would violate.  Turns out, building a cannon in California potentially violates several laws.  There is a narrow path through this legal minefield, though.  If you follow a few key rules, you might not get arrested.  If you do get arrested, you might have a valid defense.  Maybe.

The first law you need be aware of is PC 18710.  That section specifically addresses "destructive devices".  The definition of a "destructive device" in California includes any cannon that shoots fixed ammunition.  It also prohibits explosive or incendiary ammunition.  Howitzers, mortars and modern artillery are illegal, but this definition does not seem to include traditional "cannons" loaded with black powder, as long as they do not fire prefabricated ammo (casing, primer and projectile in one "shell").

If your cannon uses black powder rather than "fixed ammunition", then it is not a "destructive device".  You're not out of the woods, though.  If your device fires any projectile (a golf ball, a potato, a can of soup, etc.), it may fall within the legal definition of a "zip gun".  A zip gun is defined in PC 17360 as any device that was not produced by a licensed firearms dealer and which expels a projectile by the force of an explosion.  Possession of a zip gun is completely prohibited and may be punishable by up to 3 years in prison.

So that leaves 2 options for Californians who want to build a cannon, but who also want to stay on the happy side of the law:

  • If your device is powered by the force of an explosion (black powder), then it may NOT actually expel any projectile.  A signal cannon that makes a big BOOM may be legal.  If it launches golf balls, though, it is an illegal "zip gun"
  • If your device is powered by some force other than combustion (compressed air or a spring-loaded propellant), then it may be permissible.  
Disclaimer:  this is a very abbreviated synopsis of the law in California.  Even if your device is technically (or arguably) legal to possess, there are many other laws that prohibit "reckless" or "malicious" use of explosives, use of explosives with intent to intimidate, or any use of explosives that results in death or bodily injury.  There are also exceptions for antique cannons built before 1899, but those cases are obviously rare.  These laws are complicated and the nuances are not interesting enough to discuss here.  

If you or a loved one is accused of possessing a destructive device or a zip gun, or if you just have questions about weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Thursday, February 14, 2019

Brass Knuckles in California

Image from DefenseDevices.com

California has notoriously restrictive laws regarding possession of weapons, so it shouldn't be any surprise that brass knuckles are completely prohibited in the Golden State.

That prohibition includes possession, manufacture, importation and sales of any type of "hardened knuckles", whether they're made of metal, wood, composite (plastic) or even paper -- that's right, section 16680 of the California Penal Code specifically bans "any device or instrument made wholly or partially of wood or paper products", if that object meets the other criteria of hardened knuckles.

And the definition of "hardened knuckles" is pretty broad.  Basically, it includes any device used for offense or defense of the hand, either to protect the hand from injury when striking, or to increase the injury inflicted upon another.  On its face, this seems to include some common self-defense tools that are freely available on Amazon, like these kubaton keychains:

Item described on Amazon as "EIOU Self-Defense Key Chain"

The penalties are no joke, too.  If the weapon is made of some material other than metal, then the offense is a misdemeanor punishable by up to 6 months in jail and a fine of $1,000.  If the device is made wholly or partially of metal, then the offense can be treated as a felony, with a maximum prison sentence of 3 years.

There are many possible defenses to the charge of possessing an illegal weapon.  One common argument is that the item is not a weapon, it's a tool for some other "innocent use".  Think of motorcycle gloves with protective metal over the knuckles, or a ring that covers more than one finger.  Those items fit the definition of "hardened knuckles", but they're also commonly used for purposes other than as weapons.  If the judge determines that the object has some innocent use, then the DA must prove that the defendant actually intended to use the item as a weapon.

This argument is a little trickier than some people understand, though.  To successfully raise the "innocent use" defense, your lawyer must first prove that the object HAS some innocent use.  If the object is plainly a weapon -- and designed solely for use as a weapon -- then the defense is not available.  In that case, the prosecutor only needs to prove that the defendant knew that the object was CAPABLE of use as a weapon.  The DA does NOT have to prove that the defendant INTENDED to use the item as a weapon.  This is a nuance that trips a lot of people up.  There's a common misconception that brass knuckles are legal if you simply call them a "paperweight", or if you claim that they have some other innocent purpose.  If the object is obviously a set of brass knuckles, then the judge will not allow you to raise the "innocent use" defense.

The "self-defense" argument is another one that trips up a lot of my clients.  To successfully claim that you possessed an illegal weapon in self-defense, you have to prove some very specific things:
  1. You reasonably believed that you or someone else was in IMMINENT danger of death or of some serious bodily injury.  "Imminent" danger means immediate danger, not some future threat of harm, no matter how great or likely the harm is believed to be. 
  2. You reasonably believed that the immediate use of force was necessary to defend against that danger.
  3. The weapon became available to you without planning or preparation on your part.  You didn't plant the weapon there in case you needed it later.  
  4. You possessed the weapon temporarily, and not for any period of time longer than was necessary for self-defense. 
  5. No other means of avoiding the danger was available, AND
  6. Your use of the weapon was reasonable under the circumstances. 
Obviously, these criteria describe a very specific and unlikely scenario.  I talk to a lot of clients, though, who get into trouble because they possess weapons "for self-defense".  Unfortunately, I have to break the news to them that their situation does not qualify for a "self-defense" argument.  If you keep brass knuckles in your car "just in case", then you're violating the 3rd rule.  It's not a defense to argue that you possessed brass knuckles because you've been attacked before, or that you work in a dangerous area.  As you can see, the "self-defense" argument is more complicated than some people imagine.

It's also not a defense to argue that you purchased the item on Amazon, therefore it must be legal.  Amazon is full of items that are illegal to possess in California.  The seller might be outside of the state and beyond the reach of California law, or they might simply be a low enforcement priority.  Either way, you may be arrested for possessing an item that you purchased openly on a reputable site like Amazon or Ebay.

The law regarding "hardened knuckles" is especially frustrating because it is enforced so unevenly.  A police officer might spot your kubaton keychain (pictured above) and not say anything because it's not worth his time, or because he personally supports a woman's right to defend herself.  You might carry the item aboard an airplane 100 times without any issue.  But one day, a security screener at a public event might spot the object, recognize it as a "weapon", summon police and have you cited or arrested.  It's not right and it's not fair, but it is common.

If you or a loved one has questions about "hardened knuckles" or any other weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Weapons Lawyer

Wednesday, December 5, 2018

Everything You Wanted to Know But Were Afraid to Ask: "Lewd Conduct in Public" Edition

I've previously written here about section 647 of the California Penal Code.  Commonly referred to as "Disorderly Conduct", PC 647 prohibits everything from prostitution to peeping, loitering, sleeping in parks and being drunk in public.  Subsection (a), though, is the topic of today's post.

PC 647(a) makes it a misdemeanor to engage in any "lewd or dissolute conduct" in any public place or in any place that is exposed to public view.  To be convicted of this offense, the prosecutor must establish 5 elements:

  • That the defendant willfully touched his or her own genitals, buttocks or female breasts (or the genitals, buttocks or female breasts of another person),
  • That the defendant acted with the intent to arouse or gratify him / herself or another person, or to annoy or offend another person, 
  • The defendant was in a public place or a place that was open to public view, 
  • Someone else who might have been offended was present, AND
  • The defendant knew or should have known that another person who might be offended was present. 
That's a lot of unpack, and a lot of elements that may be open to some interpretation and argument.  Put simply though, the DA must prove that the defendant was doing something sexual in public view with the knowledge that he could be seen by someone who might not want to see whatever the defendant was doing.

It's interesting to note that breasts are only considered "lewd" on women.  If a man rubs his own bare nipples (or if someone else rubs a man's nipples) in public, there's no crime.  

In my previous post re: Drunk in Public cases, I explained that the legal definition of "public place" includes any place that is generally open and accessible to members of the public. This includes inside private businesses, on roads, in parking spaces, and even your own front porch.  Since it wouldn't be considered "trespassing" for a salesman to walk up your driveway and knock on your door, those spaces are considered "public places" for the purposes of PC 647.  The same is true for common hallways and courtyards in apartment buildings.  

The next two elements are where a lot of people get tripped up.  To constitute the crime of 647(a), the DA must prove that another person who might have been offended was present.  They do not have to prove that the onlooker was, in fact, offended.  The prosecutor must also prove that the defendant knew or should have known about the onlooker's presence, but they do not have to prove that the defendant intended to be seen.  

Even though PC 647(a) is a non-violent misdemeanor, it may carry heavy penalties, including jail time, probation, mandatory counseling, stay-away orders, fines and community service.  

There are many possible defenses to the charge of 647(a).  The best strategy in your particular case, though, will depend on the unique facts and circumstances surrounding your arrest. 

If you or a loved one has questions about PC 647(a) in California, call us for a free attorney consultation. (714) 449-3335. Ask for John

Thanks for reading. 

Thursday, August 16, 2018

Can I Be Arrested for Being "Drunk in Public" on Private Property?

Section 647(f) of the California Penal Code makes it a misdemeanor to appear in a "public place" while under the influence of alcohol or drugs.

In "drunk in public" cases, the question often arises over what technically constitutes a "public place".  There is a common myth that "drunk in public" laws are unenforceable inside bars because bars are private property.  This is false.

Under California law, a "public place" is defined as any place that is generally open and accessible to anyone who wishes to go there.  This includes private businesses that invite members of the public onto their premises.  Bars are considered to be "public places" in California.

Since roads, highways, and even parking spaces are open and accessible to the public, California courts have ruled that they also qualify as "public places" for the purposes of PC 647(f).  This means that you can be arrested for being drunk in public if you are found intoxicated inside a vehicle while the car is in a public place (on the road or parked somewhere publicly).

In some states, you can be arrested for being intoxicated in a place that is visible to the public.  In California, though, it is not necessarily illegal to be under the influence of alcohol while exposed to public view.  It is perfectly legal for adults to get inebriated inside their own homes in California, regardless of whether or not they are visible to neighbors.

The front lawn of a private residence, however, is a different story.  In the landmark case of People v. Olson (1971) 18 Cal.App.3. 594, a California appellate court ruled that the area between the street and the front door of a private residence (including the lawn and porch) are considered to be "public places" for the purposes of PC 647(f).  Since it would not be considered "trespassing" for a stranger (e.g. a salesman, a Girl Scout, a mail carrier, etc.) to approach the front door of a private home, that area is considered to be "open and accessible", and therefore "public".  This means you can be arrested for being "drunk in public" on your own front lawn.  The same is true for common hallways and courtyards of apartment buildings -- if those areas are generally open to members of the public who may pass through while conducting lawful business, then they are considered to be "public places".

In my view, there are still some unanswered questions here.  What if, for example, your front lawn is enclosed with a white picket fence?  Is that still considered "open and accessible"?  What if you have a "No Trespassing / No Solicitors" sign posted?  How about a super exclusive, members-only bar?  Or a Masonic Lodge?  Are these places "open to the public"?  I could see arguments going both ways.

There are many possible defenses to PC 647(f) charges in California.  The best strategy in your particular case will depend on the unique facts and circumstances.  Our office has extensive experience in fighting "drunk in public" charges throughout Southern California.

If you or a loved one has questions about a "drunk in public" case in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer

Drunk In Public on Catalina Island -- What to Expect

In the 9 years that I've been serving clients in the Catalina Courthouse, I have watched the island turn into a hot spot for Drunk in Public enforcement.

Not long ago, local sheriffs would regularly escort drunken tourists back to their hotels.  If an inebriated visitor couldn't remember where he was staying, or if he didn't have accommodations for the night, deputies would even him help book a room.  It took effort to get arrested for PC 647(f) in Avalon.

In the rare case where someone was actually cited and booked for being dangerously drunk, the prosecutor was generous with a plea offer when the case got to court.  A typical deal used to include reducing the misdemeanor charge to an infraction, paying a small fine, and promising not to do it again.

Times have changed, though.  A new crop of deputy sheriffs and prosecutors on the island have recently adopted a zero-tolerance, no-holds-barred approach to disorderly conduct in Avalon.  Today, the Catalina Court imposes some of the harshest penalties in the state for alcohol-related offenses.  Standard offers now include probation, hefty fines, mandatory attendance at AA meetings and significant amounts of community service or hard labor (not to mention, a misdemeanor conviction on your criminal record).  This doesn't mean that the DA always gets what they want, but you and your attorney should be prepared for a fight.

Lawyers from outside of the area may be shocked when they appear in court on the island for the first time.  In most courthouses, "drunk in public" is considered a very petty crime.  Prosecutors in downtown LA, for instance, have bigger fish to fry.  They cannot afford to dedicate significant resources to throw the book at some tourist who got caught staggering back to his hotel.  Catalina takes these cases seriously, though.  You should, too.

Section 647 of the California Penal Code governs a variety of bad behaviors that collectively fall under the umbrella of "disorderly conduct".  Subsection (f) specifically prohibits public drunkenness.  PC 647(f) is a misdemeanor, meaning that the maximum penalty includes 6 months in jail and a base fine of $1,000.00.  After all the mandatory fees and court costs are tallied, the total maximum fine is about $5,000.00.

To be convicted of PC 647(f), the prosecutor must prove 3 elements:

  1. That the defendant was under the influence of drugs or alcohol, AND
  2. That the defendant was in a public place, AND
  3. That the defendant was unable to care for his own safety or the safety of others, OR that the defendant interfered with a sidewalk or public walkway
Each of these elements is subject to some argument and interpretation.  How drunk does someone have to be before he is considered "under the influence"?  What if the person had been "dosed" or was involuntarily impaired?  What counts as a "public place"? etc.  These cases can be more complicated than they appear.  

Of course, the defense in your case will depend on the specific facts and circumstances surrounding your arrest.  Why were deputies summoned in the first place?  Did some witness(es) complain about your behavior?  Was the arrest recorded in any way (audio or video)?  Did the arresting officers conduct any sort of chemical test (e.g. a breathalyzer, etc.)?  Were you cooperative or belligerent?  Do you have a history of alcohol-related arrests?  Do the "interests of justice" dictate that you be harshly punished or that you deserve some lenience?  

Our office defends more cases on Catalina Island every year than any other private attorney in the State of California.  We have extensive experience in fighting against Drunk in Public charges, as well as all other misdemeanors that arise in and around Avalon.  In most cases, we can appear in court on your behalf so that you don't need to worry about traveling all the way back to Catalina for a series of court appearances. 

If you or a loved one have been cited or arrested while visiting Catalina, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.