Tuesday, July 16, 2019

What We're Working On Now

It's been a while since I've published an update.  We've been busy and I'm proud of some of our recent results.  Here are a few highlights, if I may brag:

-LF v. GT:  We represented the respondent in a Civil Harassment Restraining Order.  His next door neighbor was seeking protection based on a series of baseless, frivolous allegations.  Most of the petitioner's claims were not actually grounds for a restraining order, and she had no evidence or witnesses to support other accusations she was making.  I warned the petitioner before the hearing that she had exactly zero chance of winning, and I gave her the opportunity to save her own time and mine.  Instead, she chose to waste a bunch of taxpayer resources before leaving the court sad and empty-handed.  My client was happy, though, so I'm happy.

-People v. RR:  My client was arrested last year on suspicion of DUI.  At the time of his arrest, officers found tactical gear, police scanners, a dagger and a replica firearm in his car.  The DUI was reduced down to "wet & reckless" and my client was never charged or convicted for anything related to impersonating an officer.  The items in his car were not contraband and there was no evidence that they were tied to any crime.  This week, a judge ordered the San Gabriel Police Department to return all of those items to my client.

-People v. AO:  My client was visiting Disneyland with her family.  Her mom had previously given her a "self-defense" key chain, with an object that could technically be considered "brass knuckles" attached.  She obviously didn't intend any harm and she had even flown on a commercial flight carrying the item.  Police at Disneyland, though, decided to cite her for a misdemeanor.  This week, the Anaheim City Attorney agreed to reduce the charge to an infraction so that it will not affect her criminal record.

-People v. MA:  Our defendant is a mentally ill homeless man who was charged with several counts of trespassing and being drunk in public around Orange County.  He had at least one case with the Orange County District Attorney, and a handful of others that were prosecuted by the Anaheim City Attorney.  Defendant's family got him into a residential alcohol treatment facility.  We were able to coordinate a deal with both prosecuting agencies so that our client would receive "credit for time served" in treatment.  Some counts were dismissed and others were given a "terminal disposition" (time served, no probation).

-JS v. KC:  We represented an elderly man in a restraining order that his (also elderly) wife had filed against him.  After prolonged negotiations, she agreed to dismiss the case entirely and to seek couples' therapy jointly with my client.

-People v. JG:  Our client was accused of a laundry list of felony charges, including domestic violence, child endangerment and false imprisonment.  By the time we were done, he pled to a misdemeanor with no jail time.  I call that a "win".

We're currently fighting some really interesting cases, but I can't comment while they're pending.  I hope to share some more good news soon.  Stay tuned for future success stories as they become available.

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

Thanks for reading.

Orange County Criminal Defense Attorney

Monday, July 15, 2019

Arrested in Catalina: What to Do Now

Cops on Catalina don't mess around.  If you're reading this, you probably learned that the hard way.

Every summer, hundreds of thousands of visitors flock to Catalina to enjoy everything the island has to offer.  For many, that includes alcohol.  For some, that also includes a night at the Avalon Sheriff's Station.  If you were cited or arrested while visiting Catalina Island, this blog is for you.

Our office defends more cases on Catalina every year than any other private attorney or law firm.  Only the Public Defender handles more Catalina cases than us.

Catalina court is it's own world, too.  Most visiting attorneys are shocked by how "differently" things are done there.  Among other peculiarities, the building is only open on alternating Fridays.  If you show up on a Thursday, the doors will be locked.  Plus, no case files are kept on site -- they're stored in Long Beach.  That means the judge probably can't accommodate you if you show up unexpectedly when your case is not scheduled to be heard on the day's calendar.  Adding a case onto the court's calendar (to recall a warrant or to request an extension, etc.) can be an ordeal in itself.

The court staff, including judge, prosecutor, recorder and clerk fly out by helicopter from San Pedro for each appearance.  The bailiff, defense attorneys and most of the defendants travel by boat from Long Beach.  Any sort of inclement weather on either side of the channel can completely foul up everything.  Sometimes, the helicopters are flying but the boats aren't running, so the court staff shows up but none of the defendants appear.  Sometimes the opposite happens and the judge calls in over the phone.  Either way, it doesn't take much to gum up the works.

Despite what the deputy or game warden told you, your case will not be heard in Long Beach.  All misdemeanors and infractions arising in and around Catalina are prosecuted on the island.  Felonies are filed in Long Beach, though.  The most commonly charged crimes on the island are probably drunk in public, DUI, various fishing violations, possession / under the influence of a controlled substance, assault / battery, domestic violence, fighting and shoplifting.  As I've previously written on this blog, you can be arrested for DUI on a golf cart.

Another unusual thing about the Catalina Courthouse is their general hostility toward alcohol-related offenses.  Every court in every county has its own priorities (as determined by the elected District Attorney for his own political reasons).  Some courts are lenient with firearms but harsh on domestic violence, for instance.  The Catalina court is exceedingly harsh on offenses like "drunk in public".  In most parts of California, a 647(f) arrest means a night in jail and a stern warning.  In Catalina, the DA's standard offer for a 1st-time drunk in public charge includes probation, community service, AA meetings, and fines.  Jail is even on the table for repeat offenders and exceptional cases.

About half of the defendants in Catalina court are there for some fishing-related offense.  Fishing inside a protected area is a big one, along with a million other ticky tacky minor infractions -- some of which carry disproportionate fines.  The minimum fine for an abalone violation, for instance, is over $60,000.

The good news in all this is that, for most misdemeanor cases in California, you do not need to personally appear in court.  A private attorney like myself can appear in your place for most hearings.  I can save you the time and expense of traveling all the way back to Catalina for a series of routine appearances.

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

Catalina Island Lawyer

Wednesday, July 10, 2019

The Disneyland Brawl: How OC Politics Will Run the Show

Legal observers are curious to see how the investigation and prosecution(s) will play out after last weekend's Disneyland Brawl.  In case you missed it, take a moment, grab some popcorn, turn up your volume, click the link and watch one family turn Toon Town into "The Slappiest Place on Earth".

Now the real fists are about to fly as the OCDA and the Anaheim City Attorney slug it out over who will have jurisdiction to prosecute.  First, a little background:

All felonies in Orange County are prosecuted by the District Attorney's Office.  The DA is an elected official.  The DA also prosecutes ALMOST all of the misdemeanors arising within the county's borders.  As one notable exception, though, the City of Anaheim maintains its own local prosecutor.  The Anaheim City Attorney is responsible for prosecuting all misdemeanors that occur within the City of Anaheim.

Since the ACA reports to the Anaheim City Council and the Anaheim City Council effectively reports to Disneyland, the Disney Corporation indirectly operates its own prosecutor's office via the Anaheim City Attorney.  This arrangement essentially allows Disney's shareholders to call the shots regarding how / if misdemeanors are prosecuted in the City of Anaheim.  It's no wonder that the policies and priorities of the Anaheim City Attorney's Office sometimes seem like they're more intended to promote tourism than to promote justice.

The short version is this: if charges are filed as felonies, the cases will be prosecuted by the Orange County's elected DA.  If they're filed as misdemeanors, then the cases will be prosecuted by the Disney Corporation via the Anaheim City Attorney's Office.

The video of Sunday's brawl shows a laundry list of violent offenses, including assault, battery, criminal threats, disturbing the peace, child endangerment, and assault by means likely to induce serious injury.  Depending on the relationship of the parties, there might also be a variety of domestic violence-related charges.  Some of these charges can potentially be filed as felonies.  This is where it gets interesting.

I'm sure that the ACA would love to keep this one in-house.  If charges are filed as misdemeanors, then Disneyland can call the shots.  By aggressively prosecuting the case, the Disney Corporation could reassure potential tourists that the park is safe.  They must be eager to save some face, too.  Their security should be humiliated by their complete failure to address the situation in the video.  The fight lasts almost 4 minutes and 30 seconds.  The fact that a bystander recorded the beginning of the fight also suggests that onlookers had some warning that trouble was about to erupt.  Disneyland loves to brag that every inch of their park is covered by cameras, but they sure didn't respond to this melee in a timely manner.  At some point, security guards appear to officiate the brawl like Mills Lane, but they don't make any serious effort to intervene.

If the case is really going to be prosecuted aggressively, though, the DA must take the lead.  Only the DA can bring the kind of felony charges that might carry serious prison sentences.  Of course, the DA might not take their marching orders from Disneyland, though.  Anaheim's biggest fear is probably that the DA will claim jurisdiction by filing felony charges.  After prolonged plea negotiations, the defendants might eventually accept misdemeanor convictions and the ACA will be left completely out of the loop.  It would be ironic if the ACA lobbies the DA to reject felony charges, just so that they can file their own misdemeanor charges and "really play hardball".

Stay tuned to see how this plays out.  I expect we should see a press release by the Anaheim PD, the OC DA and / or the Anaheim City Attorney within a day or two.

If you or a loved one has questions for a criminal defense attorney in Orange County, call our office for a free consultation.  Ask for John.  (714) 449-3335.

Thanks for reading.

Orange County Criminal Defense

Thursday, April 25, 2019

What is the "Twinkie Defense"?

The "Twinkie Defense" refers to a legal argument that was used during the 1979 trial of Dan White for the murders of San Francisco Mayor George Moscone and Supervisor Harvey Milk.  The term is often used derisively (and incorrectly) in reference to any criminal defense theory that seems absurd.

Unfortunately, some lazy reporting by members of the news media at the time completely misrepresented the defendant's actual argument.  That shoddy journalism led to some widespread misunderstanding that persists to the present.  Today, the term seems to be misused in popular culture much more often than it is used correctly.  In reality, the argument was a sound legal defense and not nearly as ridiculous as it came to be understood.  Let me explain.

Dan White had been a San Francisco police officer and firefighter.  In 1977, he was elected to the San Francisco Board of Supervisors.  Over the following year, a deep political rift arose between him and fellow Supervisor Harvey Milk, which ultimately led White to resign from his position.  Shortly after tendering his official resignation, White attempted to rescind it and to rejoin the Board.  Milk lobbied against his reinstatement and successfully convinced Mayor Moscone to appoint a more liberal political ally to the vacant seat.

On November 27, 1978, White arrived at San Francisco City Hall with a .38 caliber revolver.  He climbed through an open window to elude metal detectors at the building's entrance and proceeded to Moscone's office, where he demanded a meeting with the mayor.  Following a verbal argument, White shot Moscone several times, reloaded, and quickly left.  White then encountered Harvey Milk in a hallway.  He asked Milk to step inside his former office, where he shot and killed the supervisor.  White escaped from City Hall, but later turned himself in at a local precinct.

Dan White was charged with 2 counts of premeditated murder.  At trial, the prosecutor presented evidence to support the allegation that the murders were carefully planned, including the fact that White had the presence of mind to climb through a window rather than submit to security screening at the building's entrance.

In his defense, attorneys argued that White suffered from severe depression, leading to a state of "diminished capacity".  They told the jury that White's mental illness rendered him unable to form the "premeditation" required for a 1st-degree murder conviction.  As proof of his depression, attorneys presented evidence of extreme behavioral changes that White had undergone shortly before the murders.  Previously, White had been described as a "fitness nut", who exercised regularly and adhered to a strict diet of healthy food.  In the weeks leading up to the shootings, though, White's hygiene had deteriorated, he had become alienated from his wife, and he had begun consuming junk food and sugary drinks.  These things were all considered to be out of character for him.  At trial, psychiatrists described those severe behavioral changes as symptoms of White's depression, not the cause of it.  Nobody argued that Twinkies made him insane -- they argued that White was insane, and that his uncharacteristic consumption of junk food was proof that he had temporarily lost his ability to think clearly and to understand the nature of his actions.  

Jurors agreed with the arguments of White's defense counsel and returned verdicts of "voluntary manslaughter" rather than 1st-degree murder.  Public outrage over the verdicts led to riots and some significant changes to California law.  Today, the argument of "diminished capacity" has been abolished in California courts and replaced with the doctrine of "diminished actuality".  Defendants can no longer argue that some mental illness rendered them unable to form criminal intent.  Instead, they must prove that they actually did not form the requisite intent due to some mental illness.  The distinction is subtle but it has had a huge impact on the way that these types of cases are litigated today.

Irresponsible members of the news media fed into the public outrage by grossly misrepresenting White's actual argument.  As the story was falsely relayed by several outlets, Dan White had escaped justice by speciously arguing that he was "high" on Twinkies at the time of the killings, or that his excessive consumption of sugar had somehow rendered him "temporarily insane".  Sensational but inaccurate stories made national headlines and perpetuated the myth of the "Twinkie Defense" as it persists in popular culture today.

If you or a loved one has questions about "diminished capacity / actuality" or "insanity" in California, or if you just want to talk about the "Twinkie Defense", call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  We have extensive experience defending against all types of criminal charges in Southern California, including cases where the defendant's competency or mental health may be at issue.  

Thanks for reading.

Orange County Criminal Defense Attorney

Friday, April 12, 2019

Police Took My Stuff. How Can I Get it Back?

Police often seize property during investigations if they believe that the items are illegal to possess or that the property is evidence of a crime.

Of course, police have the authority to collect evidence for criminal prosecutions.  Citizens, though, have the right to be free from unreasonable seizures.  Individuals in the United States also have the right to Due Process before the government can simply take their property.  When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.

There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.

Evidence

If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved.  They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.

After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins.  When the case is over, then the items are no longer needed as "evidence".  If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise.  And there are a few good counterarguments.

Contraband

Obviously, the court will not order the police to return something that is illegal to possess.  Illegal weapons, for example, must be destroyed by law after a case is resolved.  The same is true for drugs, drug paraphernalia, and counterfeit goods.

These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband".  Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments.  It's amazing how many police, prosecutors and even judges don't understand these laws.  Police often seize legal weapons because they "look scary".  A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.

Forfeiture

If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited.  If property is forfeited, the police get to keep it.  This has become a huge area of controversy lately.  Some police departments have become dependent on forfeiture actions to balance their budgets.  Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.

The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved.  If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence.  This is especially common in cases involving poaching and illegal fishing.  Poachers and illegal fishermen usually possess a lot of expensive gear.  The Fish & Wildlife agents really want that gear.  In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife.  If you're not willing to forfeit your valuable gear, we can help you keep it.

Marijuana

Marijuana is legal in California, but it is also subject to many regulations and restrictions.  This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do.  If police seize your cannabis, call our office to discuss your options.

If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return.  This may be risky, though.  By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble.  Talk to us before you talk to the police.

Firearms

Guns are even more complicated.  Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them.  This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.

If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons.  In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them.  This is a several-step process, but it can be done.

If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

Tuesday, April 9, 2019

Getting (or Fighting) a Restraining Order Against a Neighbor

Intro to Civil Harassment:  When Neighbors Go Bad

California law allow individuals who have been the victims of harassment to seek the protection of a restraining order.  There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc.  Today, I want to specifically discuss restraining orders between neighbors.

Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence).  Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders".  They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.

To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment".  The petitioner bears the burden of proving the case by "clear and convincing evidence".  "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases).  It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.

If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment".  Those orders can also protect other individuals who live with the petitioner, and even pets.

Harassment, Defined

Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion.  In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be.  The legal definition of "harassment" is:
  • a course of conduct (not just a single act), 
  • which is directed AT a particular person (not just some behavior that affects the petitioner),
  • which serves no lawful purpose (more on this below),
  • which would cause a reasonable person to suffer distress, and
  • which does actually cause the petitioner to suffer distress. 
That means the conduct in question must be something that your neighbor has done TO you, not just something your neighbor has done that AFFECTS you.  A good example is illegal parking.  Your neighbor might violate every single ordinance in the book by constantly parking his cars illegally.  Maybe he leaves inoperable vehicles on the street for weeks at a time, leaking oil everywhere.  This conduct might affect you because it creates an eyesore and because your guests have nowhere to park.  It might even cause you to "suffer distress", but it is not directed AT you.  Since your neighbor is not doing anything TO you, illegal parking is not the basis for a restraining order.  You may have other remedies (e.g. calling the police or Code Enforcement, etc.), but a restraining order is not appropriate here, no matter how much your neighbor's illegal parking bothers or annoys you.  The same is true for neighbors who smoke on their own property, let their lawns grow 3 feet high or who build bonfires that aggravate your asthma.  Those things might be code violations and they might cause you to suffer distress, but they're not "harassment" because they're not targeted AT you.  

What about a neighbor who constantly calls the police to report every perceived infraction?  I'm talking about the nervous old lady who reports "loud parties" at 7:30 PM -- I'm talking about the self-appointed "neighborhood watchman" who has Code Enforcement on speed dial, like Wyatt Earp of the cul-de-sac.  What can be done if you've become the target of one of these vigilantes?  Unfortunately, not much, at least not in restraining order court.  Remember, to constitute "harassment", the conduct must serve "no lawful purpose".  Calling the police to report some perceived offense is a lawful purpose, even if that conduct is directed at you and it causes you to suffer distress.  The judge will never order someone to stop calling the police.  Eventually, the police might tell them to stop calling, or they might simply stop responding.  If the police determine that someone is filing reports that they know to be false, they can pursue criminal charges against the caller.  Again, though, a restraining order is not the appropriate remedy here.

Scope of Orders, and Their Limits

The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment".  As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.

The respondent can be ordered not to contact you by any means, directly or indirectly.  That includes in person, by phone, text, mail, etc.  That even includes asking someone else to pass along a message to you, except through an attorney.

If the respondent violates any of those orders, he or she can be arrested for "contempt of court".  If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.

The judge cannot, however, order someone to stop talking about you if you're not present.  If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies.  Again, though, a restraining order is not the appropriate remedy.

Restraining Orders and Firearms

If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer.  The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.

If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk".  Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms.  The respondent is not obligated to let them in unless agents present a search warrant.  (NOTE:  Generally, any adult who is present at the time can give agents consent to a search.  If the husband refuses and the wife allows it, for instance, then agents have consent.  Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)

If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant.  The governor recently granted more funding to these regional teams of DOJ investigators.  They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.

If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options.  If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member.  If they have great financial value, you may also be able to sell them for their fair market value.  You may also be permitted to store them for a longer period if you expect to recover them later.

Free Attorney Consultation

If you or a loved one has problems with a neighbor, or questions about restraining orders in general, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Restraining Order Lawyer

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 find 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