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
Showing posts with label weapons. Show all posts
Showing posts with label weapons. Show all posts
Tuesday, July 16, 2019
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
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
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.
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
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
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:
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:
- 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.
- You reasonably believed that the immediate use of force was necessary to defend against that danger.
- 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.
- You possessed the weapon temporarily, and not for any period of time longer than was necessary for self-defense.
- No other means of avoiding the danger was available, AND
- Your use of the weapon was reasonable under the circumstances.
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
Thursday, July 26, 2018
Is Open Carry Now Legal in California?
The big news this week comes from the 9th Circuit Court of Appeals in California. The traditionally (notoriously?) left-leaning federal court delivered its second pro-gun ruling in as many weeks, and pundits on both sides of the gun control debate are losing their minds. Today, I want to spend a minute breaking down what this ruling actually means, and where we go from here.
On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii. The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public. The plaintiff in this case had applied for a license and been denied twice. He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.
To explain their reasoning, the majority cited the recent decisions in Heller and McDonald. Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense. In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public. Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection. States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.
The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule. Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter. If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again. Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.
For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses. It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.). Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State. It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too. If the ruling in Young withstands the next round(s) of appeals, that might change.
Stay tuned to see how this plays out.
If you or a loved one has questions about firearms and your rights in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Gun Lawyer
On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii. The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public. The plaintiff in this case had applied for a license and been denied twice. He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.
To explain their reasoning, the majority cited the recent decisions in Heller and McDonald. Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense. In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public. Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection. States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.
The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule. Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter. If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again. Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.
For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses. It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.). Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State. It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too. If the ruling in Young withstands the next round(s) of appeals, that might change.
Stay tuned to see how this plays out.
If you or a loved one has questions about firearms and your rights in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Gun Lawyer
Wednesday, March 14, 2018
Can Hands Be Considered "Deadly Weapons" in California?
Is it true that Mike Tyson's hands are considered "deadly weapons"? If Chuck Norris karate chopped someone in a bar, would Mr. Norris be charged for "assault with a deadly weapon"? In California, the answer is "maybe".
Section 245 of California Penal Code defines aggravated assault, commonly referred to as "assault with a deadly weapon, or by force or means likely to induce a great bodily injury". To be guilty of violating PC 245, the DA must prove that the defendant willfully performed some act that would likely injure someone else.
If the defendant uses or attempts to use a weapon against a victim (he swings a baseball bat toward someone, or throws a rock at someone's head, etc.), a jury could convict him of violating PC 245 because those actions are likely to cause injuries, regardless of whether or not the defendant actually harms anyone. Those are both examples of "assault by force or means likely to result in a bodily injury", even when nobody actually gets hurt.
A defendant can also be guilty of violating PC 245 without actually using any weapon. Remember, using a weapon is NOT an element of this crime. A defendant can be convicted for PC 245 if he and a friend (or several friends) cooperate to jump someone. Even if none of the assailants use weapons, jumping someone in an unfair fight is likely to cause serious injuries to the target of that beating. Anyone who participates in the beating is guilty of violating PC 245.
Similarly, the DA might file PC 245 charges in a case where a fair fight devolves into a beating. For example, imagine two men voluntarily choose to fight in a parking lot. The fight starts fairly and the two men are evenly matched, but one man slips, drops his hands, and gets knocked out. After he falls unconscious, the other man continues kicking and beating him on the ground. Obviously, beating and kicking an unconscious man is likely to cause serious injuries. Even though this confrontation began as a fair fight, and even though the victor never used a weapon, he could still be charged and convicted for violating PC 245.
Back to my example of Mike Tyson or Chuck Norris assaulting someone in a bar fight: if either world-renowned fighter took a swing at a drunken amateur, it is probably likely that the poor victim would suffer some serious injury. If a jury agreed, then Iron Mike and Master Norris could be convicted of PC 245, commonly known as "assault with a deadly weapon", simply for punching someone with a bare fist.
In the real world, though, cases aren't usually so cut-and-dry. There are many possible defenses to assault charges, including self-defense. If you or a loved one has been arrested for assault in California, call us for a free attorney consultation. 714 449 3335. Ask for John.
Thanks for reading.
Thursday, December 15, 2016
New California Gun Laws for 2017
Between July's "Gunmageddon" and the passage of Prop. 63, California enacted a series of restrictive new gun laws this year.
Some new California gun laws to expect in 2017 include:
Some new California gun laws to expect in 2017 include:
- A ban on the sale / transfer of common, center-fire, semiautomatic rifles with detachable magazines.
- A new definition of "detachable magazine", to specifically prohibit the "bullet button".
- A ban on the possession of any magazine that is capable of holding more than 10 rounds.
- The nation's first background check to purchase ammunition.
- A ban on importation of ammo from out-of-state.
- A new requirement that homemade lower receivers ("ghost guns") be serialized and registered with the state.
The definition of "assault rifle" under California law was expanded to include any center-fire, semiautomatic rifle with a magazine that is not "fixed". If the magazine can be removed without disassembling the action of the firearm (pulling the rear take-down pin), it is now considered "detachable". This effectively bans the bullet button.
If you own a rifle with detachable magazine or a bullet button before January 1, 2017, you may keep it, but you can't sell it, trade it or give it away after that date. If you die, your kids can't inherit it. You are the last person who will ever own it. You must also register your "assault rifle" with the Department of Justice before December 31, 2017.
Starting July 1, 2017, civilians will be completely prohibited from possessing magazines with the capacity to hold more than 10 rounds. There is no "grandfather clause" for magazines that were owned or possessed before the prohibition. If you own them now, you're expected to turn them in, take them out of state, sell them to a licensed firearms dealer, or destroy them.
As of January 1, 2018, Ammunition buyers will be required to purchase a 4-year permit for $50.00 and undergo a background check. All ammunition sales will be electronically reported to the Department of Justice, and residents will be prohibited from bringing ammunition into California from out-of-state.
If you finish your own 80% receiver in your garage, you must register your "ghost gun" with the Department of Justice and have the part serialized. Starting January 1, 2017, unfinished receivers will be regulated just like real firearms.
As of January 1, 2018, Ammunition buyers will be required to purchase a 4-year permit for $50.00 and undergo a background check. All ammunition sales will be electronically reported to the Department of Justice, and residents will be prohibited from bringing ammunition into California from out-of-state.
If you finish your own 80% receiver in your garage, you must register your "ghost gun" with the Department of Justice and have the part serialized. Starting January 1, 2017, unfinished receivers will be regulated just like real firearms.
There are still a lot of unanswered questions about how these new regulations will work in practice. We also expect some tooth-and-nail litigation before some of those questions are resolved. Stay tuned to see how this all plays out over the next year.
If you or a loved one has questions about gun laws in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Gun Lawyer
If you or a loved one has questions about gun laws in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Gun Lawyer
Tuesday, October 4, 2016
We're Moving!
After 7 years at our Santa Ana location, we're moving to Fullerton at the end of this week. The new office will be located on the 9th floor of the Fullerton Towers, at 1440 N. Harbor Blvd. (Harbor & Brea Blvd., a block from the Fullerton courthouse).
We previously had a space in the Fullerton Towers that we used on an hourly basis to meet with clients. Now, it will be our full-time home. As a local Fullerton boy, I'm excited about this new opportunity to better serve clients in my home town. I love appearing at the North Orange County Justice Center, and this new location will make my Fullerton appearances even more convenient.
I'll still be mobile and I'm always happy to meet my clients wherever they're comfortable. If transportation is a problem, I'll come to your house or I'll meet you at a Starbucks near your workplace if downtown Fullerton is inconvenient for you.
The location of our office is changing, but our practice is not. We will continue to deliver outstanding legal representation for our clients in criminal matters, DUI, restraining order cases and supporting the medical marijuana industry.
If you or a loved one has questions regarding a criminal case, a restraining order, or medical marijuana, call us at our new number for a free attorney consultation. (714) 449-3335.
Thanks for reading.
Fullerton Attorney
Tuesday, May 24, 2016
What Kinds of Knives are Legal to Carry in California?
Everybody knows that California has some of the most complicated, restrictive gun laws in the country. Our knife laws are slightly less complicated, but still pretty asinine. I'm always amazed at how many police officers, prosecutors and judges don't understand these. By the time you finish reading this, you'll be an expert.
Here's a quick overview of the rules regarding knives in California.
Folding vs. Fixed Blade
California law distinguishes between fixed-blade knives and folding knives. If the knife folds, it may generally be carried concealed, as long as the blade is not extended and locked into place while concealed. If you can fold it, you can hold it.
If a blade is fixed, the knife is considered a "dirk or dagger". In fact, any non-folding weapon that is capable of inflicting injury by stabbing is considered a "dirk or dagger", even if the object itself is not technically a "knife" (a hay hook, a sharpened toothbrush, etc.).
Dirks / daggers are legal to own, possess and carry, but they may not be concealed upon your person. A knife is not considered "concealed" if it is worn openly in a sheath suspended from a belt. A knife is also not considered "concealed" if it is carried within the passenger area of a car. It is perfectly legal to keep a knife hidden in your car in California, as long as it's not "on your person".
In short: you may carry a folding knife in your pocket as long as the blade is closed. If you want to carry a fixed-blade knife or any other stabbing weapon on your person, it must be visible and worn in a sheath attached to your belt.
Size Limits on Knives
There is no statewide size restriction on knives under California law, but some cities may have more restrictive local ordinances. The City of Los Angeles, for instance, prohibits any person from carrying a knife in plain view. The law includes any knife with a blade of three or more inches in length, any switchblade, and any other sharp stabbing tool affixed to a handle, regardless of length. The Los Angeles law does not prohibit the concealed possession of folding knives in public, only their display in plain view. The precise definition of "in plain view" is probably up for debate.
Check your local municipal code to determine whether or not your town imposes restrictions on knives that are more stringent than the statewide law.
Prohibited Knives
California prohibits the possession of any weapon that is disguised or not immediately recognizable as a weapon. This includes knives that are hidden inside hairbrushes, lipstick tubes, writing pens, air gauges, belt buckles, canes, etc.
Californians may own switchblade knives in their homes, but they may not carry switchblades in public or in the passenger area of any car. They also may not transfer them to any other person. The same rule applies for gravity knives and butterfly knives, AKA "balisongs", AKA "batangas".
What Counts as a "Switchblade"?
Until a few years ago, there was a real debate among criminal defense attorneys, prosecutors and judges over what actually constituted a "switchblade" knife. The way the law was previously written, it seemed to prohibit public possession of common "assisted openers". Assisted openers are pocket knives with spring-loaded blades that pop fully open once the user starts the process and overcomes some initial resistance. There is no button or release lever, just a thumb stud on the front or on the side of the blade. Assisted openers are a hugely popular "everyday carry" option for many people because of their ease and convenience, especially when working with one hand (on a ladder, for instance).
To clarify all the confusion regarding what did and didn't qualify as a "switchblade" in California, the legislature revamped section 17235 of the Penal Code by adding one sentence to the law. The addition, in italics, was intended to clarify that assisted openers ARE legal to carry in the State of California. Today, that code section reads as follows:
"A 'switchblade knife' means a knife having the appearance of a pocketknife and includes a
spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever. 'Switchblade knife' does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position."
What Counts as a "Butterfly Knife"?
There's a lot of argument about what technically constitutes a "butterfly" knife (or "gravity knife", balisong, etc.). The legal definition includes any knife with a blade over 2 inches that is capable of being released by a flick of the wrist or by the weight of the blade. If your folding knife snaps open with a flick of the wrist, or if the blade falls open under it's own weight, then it is illegal to carry in public.
Many law-abiding people are carrying pocket knifes that can be flicked open if the user's wrist is strong and fast enough. Old pocket knives get loose and fall open. An aggressive police officer might argue that these are illegal knives.
If you or a loved one have questions regarding knives or other weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience in defending against all types of criminal and weapons-related charges.
Thanks for reading.
Orange County Weapons Lawyer
Here's a quick overview of the rules regarding knives in California.
Folding vs. Fixed Blade
California law distinguishes between fixed-blade knives and folding knives. If the knife folds, it may generally be carried concealed, as long as the blade is not extended and locked into place while concealed. If you can fold it, you can hold it.
If a blade is fixed, the knife is considered a "dirk or dagger". In fact, any non-folding weapon that is capable of inflicting injury by stabbing is considered a "dirk or dagger", even if the object itself is not technically a "knife" (a hay hook, a sharpened toothbrush, etc.).
Dirks / daggers are legal to own, possess and carry, but they may not be concealed upon your person. A knife is not considered "concealed" if it is worn openly in a sheath suspended from a belt. A knife is also not considered "concealed" if it is carried within the passenger area of a car. It is perfectly legal to keep a knife hidden in your car in California, as long as it's not "on your person".
In short: you may carry a folding knife in your pocket as long as the blade is closed. If you want to carry a fixed-blade knife or any other stabbing weapon on your person, it must be visible and worn in a sheath attached to your belt.
Size Limits on Knives
There is no statewide size restriction on knives under California law, but some cities may have more restrictive local ordinances. The City of Los Angeles, for instance, prohibits any person from carrying a knife in plain view. The law includes any knife with a blade of three or more inches in length, any switchblade, and any other sharp stabbing tool affixed to a handle, regardless of length. The Los Angeles law does not prohibit the concealed possession of folding knives in public, only their display in plain view. The precise definition of "in plain view" is probably up for debate.
Check your local municipal code to determine whether or not your town imposes restrictions on knives that are more stringent than the statewide law.
Prohibited Knives
California prohibits the possession of any weapon that is disguised or not immediately recognizable as a weapon. This includes knives that are hidden inside hairbrushes, lipstick tubes, writing pens, air gauges, belt buckles, canes, etc.
Californians may own switchblade knives in their homes, but they may not carry switchblades in public or in the passenger area of any car. They also may not transfer them to any other person. The same rule applies for gravity knives and butterfly knives, AKA "balisongs", AKA "batangas".
What Counts as a "Switchblade"?
Until a few years ago, there was a real debate among criminal defense attorneys, prosecutors and judges over what actually constituted a "switchblade" knife. The way the law was previously written, it seemed to prohibit public possession of common "assisted openers". Assisted openers are pocket knives with spring-loaded blades that pop fully open once the user starts the process and overcomes some initial resistance. There is no button or release lever, just a thumb stud on the front or on the side of the blade. Assisted openers are a hugely popular "everyday carry" option for many people because of their ease and convenience, especially when working with one hand (on a ladder, for instance).
To clarify all the confusion regarding what did and didn't qualify as a "switchblade" in California, the legislature revamped section 17235 of the Penal Code by adding one sentence to the law. The addition, in italics, was intended to clarify that assisted openers ARE legal to carry in the State of California. Today, that code section reads as follows:
"A 'switchblade knife' means a knife having the appearance of a pocketknife and includes a
spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever. 'Switchblade knife' does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position."
What Counts as a "Butterfly Knife"?
There's a lot of argument about what technically constitutes a "butterfly" knife (or "gravity knife", balisong, etc.). The legal definition includes any knife with a blade over 2 inches that is capable of being released by a flick of the wrist or by the weight of the blade. If your folding knife snaps open with a flick of the wrist, or if the blade falls open under it's own weight, then it is illegal to carry in public.
Many law-abiding people are carrying pocket knifes that can be flicked open if the user's wrist is strong and fast enough. Old pocket knives get loose and fall open. An aggressive police officer might argue that these are illegal knives.
If you or a loved one have questions regarding knives or other weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience in defending against all types of criminal and weapons-related charges.
Thanks for reading.
Orange County Weapons Lawyer
Wednesday, April 13, 2016
What's New in California Gun Laws?
AB-2459
This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years. It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.
The measure is working its way though the Assembly committee process. It was watered down a little in the Committee on Public Safety last week. Now it's headed back to the Committee on Privacy & Consumer Protection.
A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled. It also would have mandated that the store owner maintain all footage on site for a period of 5 years.
As amended, the latest version of the proposed law would only require gun dealers to record transactions. The video footage must be in color and of sufficient definition to record the facial features of all buyers. The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored. The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.
The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself. The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations. Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person. All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print. The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file. A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.
Current Status of Peruta v. San Diego
This is the case that turned California's CCW licensing scheme on it's head. It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.
Here's a little background: Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license. A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.
Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense. His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public. The Federal District Court in San Diego agreed.
Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.
The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet. An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.
Until the court provides some guidance, we're left in a sort of legal purgatory. The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court. Things are likely to get even muddier before we see any clarity. Check back often for updates as they become available.
Updated 6/23/16: The 9th Circuit delivered its ruling last week. Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.
AB-1663 & AB-1664
These two proposed laws would effectively ban the "bullet button" in CA. I've written about them previously, here.
Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.
If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk. Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.
8,500 CCW Permits in Orange County, 0 Incidents of Misuse
Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.
According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County. Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").
Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure
Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.
The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.
California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them. Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.
Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.
And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage. No other state currently requires background checks to purchase ammo.
The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year. Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime. As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will. News flash: felons are already prohibited from possessing firearms and ammunition in California. This law will not prevent bad guys from gaining access to guns. It will, however, make shooting sports more expensive and inconvenient for the rest of us.
If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading.
Orange County Gun Lawyer
This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years. It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.
The measure is working its way though the Assembly committee process. It was watered down a little in the Committee on Public Safety last week. Now it's headed back to the Committee on Privacy & Consumer Protection.
A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled. It also would have mandated that the store owner maintain all footage on site for a period of 5 years.
As amended, the latest version of the proposed law would only require gun dealers to record transactions. The video footage must be in color and of sufficient definition to record the facial features of all buyers. The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored. The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.
The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself. The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations. Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person. All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print. The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file. A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.
Current Status of Peruta v. San Diego
This is the case that turned California's CCW licensing scheme on it's head. It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.
Here's a little background: Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license. A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.
Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense. His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public. The Federal District Court in San Diego agreed.
Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.
The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet. An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.
Until the court provides some guidance, we're left in a sort of legal purgatory. The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court. Things are likely to get even muddier before we see any clarity. Check back often for updates as they become available.
Updated 6/23/16: The 9th Circuit delivered its ruling last week. Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.
AB-1663 & AB-1664
These two proposed laws would effectively ban the "bullet button" in CA. I've written about them previously, here.
Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.
If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk. Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.
8,500 CCW Permits in Orange County, 0 Incidents of Misuse
Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.
According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County. Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").
Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure
Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.
The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.
California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them. Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.
Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.
And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage. No other state currently requires background checks to purchase ammo.
The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year. Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime. As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will. News flash: felons are already prohibited from possessing firearms and ammunition in California. This law will not prevent bad guys from gaining access to guns. It will, however, make shooting sports more expensive and inconvenient for the rest of us.
If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading.
Orange County Gun Lawyer
Wednesday, March 2, 2016
Proposed Bills Would Ban "Bullet Buttons" in California
Under current California law, an "assault weapon" is defined as any semi-automatic, centerfire rifle that includes a detachable magazine and one of several enumerated "scary" features (e.g. a pistol grip, folding stock, etc.). A magazine is not considered "detachable" under the law if its removal requires the use of a tool.
Enter the "bullet button". The bullet button is a California oddity. It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work. Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button". It looks like this:
A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool. The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.
Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law. They argue that the ability to quickly reload a rifle poses a danger to public safety.
Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations. I tend to agree (no surprises here).
Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT. In his veto message, he noted that California already has some of the most restrictive gun laws in the nation. Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state. He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.
The proposed laws would solve a problem that simply does not exist in California. According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available). Of those 1,697 murders, only 40 were committed by rifle. That's a whopping 2.3% of all murders in the state. There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.
In the same year, shotguns killed 43 people. Blunt objects killed 65. Knives were involved in 256 murders. Handguns killed 763. Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope. It's fair to say that we don't have a rifle problem in California.
The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety. They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions. These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines. If you agree, please call your local Assemblyman and let him or her know how you feel.
If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation. (714) 449-3335. We understand California's complicated gun laws and we have the experience to fight your case.
Thanks for reading.
Orange County Gun Lawyer
Enter the "bullet button". The bullet button is a California oddity. It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work. Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button". It looks like this:
A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool. The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.
Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law. They argue that the ability to quickly reload a rifle poses a danger to public safety.
Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations. I tend to agree (no surprises here).
Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT. In his veto message, he noted that California already has some of the most restrictive gun laws in the nation. Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state. He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.
The proposed laws would solve a problem that simply does not exist in California. According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available). Of those 1,697 murders, only 40 were committed by rifle. That's a whopping 2.3% of all murders in the state. There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.
In the same year, shotguns killed 43 people. Blunt objects killed 65. Knives were involved in 256 murders. Handguns killed 763. Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope. It's fair to say that we don't have a rifle problem in California.
The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety. They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions. These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines. If you agree, please call your local Assemblyman and let him or her know how you feel.
If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation. (714) 449-3335. We understand California's complicated gun laws and we have the experience to fight your case.
Thanks for reading.
Orange County Gun Lawyer
Wednesday, January 27, 2016
Police Took My Guns. How Can I Get Them Back?
The pen > the sword, but the Beretta M9 > the pen.
Police often seize firearms during criminal investigations. Today's post is about the specific process that must be followed in California before the police can return those guns to their lawful owner.
Like all property that police seize, your guns will be held in an evidence locker at the police station for the duration of their investigation. Once the investigation is completed, police will prepare reports to document their findings. They will submit those reports to the DA for review and potential filing of criminal charges. If the DA decides to charge someone with a crime, the guns could be used as evidence at trial. If no charges are filed, then you might be eligible to apply for the return of your weapons.
I say "you might be eligible", because there are a lot of different factors that come into play when we're discussing guns in California. It's been said before, but it's worth repeating, that California has some of the most complicated, restrictive gun laws in the United States. It can be difficult to determine whether or not a particular person is eligible to possess weapons, whether or not a weapon has been illegally transferred or modified, and whether or not a weapon technically meets the definition of a "short-barreled rifle" or "assault weapon", etc.
To assist the police in determining whether or not someone is eligible to possess firearms, anyone who requests the return of his or her guns from the police must complete a "Law Enforcement Gun Release Application". That application is available for download here. There is a $20 fee for processing the application, but the fee is waived if the lawful owner had previously reported the firearm as stolen.
To assist the police in determining whether or not someone is eligible to possess firearms, anyone who requests the return of his or her guns from the police must complete a "Law Enforcement Gun Release Application". That application is available for download here. There is a $20 fee for processing the application, but the fee is waived if the lawful owner had previously reported the firearm as stolen.
Where do I start if police are holding my lawfully-acquired guns?
To start the process, you must complete the LEGR application, available at the link above, and mail your application to the California Department of Justice. The DoJ will use the information that you provide to determine whether or not you are eligible to possess firearms under state and federal law. You will receive a "determination notice" by mail.
Your "determination notice" is only valid for 30 days, so you should immediately take your letter to the police agency that is holding your firearms.
Even after you receive a determination letter indicating that you are the lawful owner of the firearms and that you are legally permitted to possess them, police might still refuse to release the guns. This is because the police have no way of knowing whether or not the firearms are still needed as evidence in a pending criminal case. To prevent the potential loss of valuable evidence, many local law enforcement agencies have policies of never releasing property unless they are presented with a court order to do so.
I've completed the LEGR application and received my "determination notice", but police are still refusing to return my guns. What now?
The next step may be to get the courts involved. You (or your attorney) can file a "motion for the return of property" in the appropriate court. If you can demonstrate that you are the lawful owner of the property, and that the property is neither contraband nor evidence in a pending case, then a judge may order the police to return that property to you. This is the DA's opportunity to explain whether or not the weapons are needed as evidence, or if the government has any other interest in preventing the return of your firearms.
There are lots of technical requirements for serving your motion on the DA and scheduling a hearing with the court, and I won't waste too much time here with boring details. Those are things that your attorney should understand. If your lawyer does not know how to file a routine motion in criminal court, have him or her call me and I will explain it.
Keep in mind that your "determination notice" is only valid for 30 days, so it's important to get working right away. It can take weeks to schedule a hearing on the motion for return of property, so don't waste any time once you receive your letter from the Department of Justice. It's probably advisable to get your attorney involved from the earliest stages so that all necessary paperwork can be completed within the appropriate time frame.
What if police took firearms that were NOT registered to me?
To receive your firearms back from the police, you must prove that you are the registered owner of those weapons. If you are NOT the registered owner, there's a few more steps involved.
This problem usually arises when police seize your dad's guns because your dad was not legally permitted to possess them. Maybe those guns have been in the family for generations, they have sentimental value, and you expected to inherit them. Now they're in an evidence locker and you want to take possession of them so that they aren't melted down.
In that case, the registered owner (your dad) may be able to have those firearms released from the police to the possession of a licensed firearms dealer. If you are legally eligible to possess guns, then the dealer can transfer them to you for a nominal fee. This may require a court order.
If you or a loved one has questions about how to recover your firearms after they've been seized by the police, call us for a free attorney consultation. (714) 449 3335. Ask for John. Thanks for reading.
Fullerton Gun Lawyer
Friday, January 8, 2016
How to Restore Gun Rights in California
There's been a lot of talk in the news media lately about keeping guns out of the hands of felons. Gun control is one of the most divisive issues today, and California has decided to take an aggressive lead in the movement to further restrict firearms.
If you are ineligible to purchase or possess firearms due to a criminal conviction in California, there are a couple ways by which you might be eligible to restore your Second Amendment rights.
California law offers several different options for cleaning up your old criminal record. Some (not all) of those options may have the effect of restoring gun rights. I'll try to explain the differences between these legal procedures.
Post Conviction Relief in California
After a defendant is convicted of a crime in California, state laws offer him a few different ways to clean up his criminal record. These procedures are collectively called "post-conviction relief".
Forms of post-conviction relief in California include:
-1203.4 Dismissal (commonly called an "expungement"): A successful 1203.4 petition may change a defendant's criminal record so that the case shows up as a "dismissal" rather than a "conviction" when a prospective employer runs a background check. It's a great option if you're trying to get back to work after being convicted of a crime, but an expungement does nothing for gun rights. If you read the instructions on the paperwork carefully, they clearly inform the petitioner that a 1203.4 dismissal will not relieve him of his duty to register as a sex offender and will not restore his rights to purchase or possess firearms.
-Prop. 47: In 2014, California voters approved Prop. 47. That ballot initiative reduced many crimes (such as drug possession) from felonies or "wobblers", to straight misdemeanors. That law became retroactive, so people who had been convicted of felonies many years ago were suddenly eligible to apply to have their old cases reduced, even if they performed poorly on probation and had subsequent arrests. Unfortunately, a retroactive reduction under Prop. 47 will not restore gun rights, either.
-PC 17(b): Section 17(b) of the California Penal Code allows judges to reduce some felonies to misdemeanors "in the interests of justice". Not all felony convictions are eligible for reduction under 17(b). Only "wobblers" potentially qualify. Wobblers are crimes that can charged as either felonies or misdemeanors, at the discretion of the DA. Common wobblers include domestic violence with injury, vehicular manslaughter and making criminal threats.
A reduction under 17(b) will restore firearms rights, assuming the defendant has no other disqualifying factors. Even if a felony conviction for domestic violence is reduced to a misdemeanor under 17(b), though, the applicant may still be ineligible to possess firearms. If the defendant and the victim were married at the time of the offense, federal law prohibits the defendant from purchasing or possessing firearms for life. If they were NOT married and the crime was treated as a misdemeanor, federal law does not apply. California law, however, still prohibits anyone with a misdemeanor conviction for domestic violence from possessing firearms for a period of 10 years following the conviction.
A judge may grant a 17(b) petition at any time -- before trial, after trial, while the defendant is serving a sentence, or after the defendant has completed his sentence.
In order to receive a reduction under 17(b), the applicant must demonstrate "good cause", and must demonstrate that the requested relief "serves the interests of justice". There is no magic formula for satisfying these requirements. Judges are reluctant to grant these requests, so the petitioner must be prepared with some pretty compelling arguments. In almost every post-conviction 17(b) hearing I've ever attended, the judge begins the proceedings with some version of this speech:
Back when this case was filed, the DA had the choice of treating the matter as either a felony or a misdemeanor. They made the decision to file a felony charge, based on the nature of the offense and the defendant's criminal history. The defendant had a fair opportunity to negotiate a settlement and he chose to accept a plea deal which included a felony conviction. He did not have to accept that deal, but he did so because it was in his best interests at the time. Now he wants to back out of that deal. Explain to me why I should allow him to renege on his end of the bargain.
Judges like to hear these types of arguments (if they're true and relevant):
-Due to some change in circumstances, a plea deal that seemed fair at the time is no longer fair. "Change in circumstances" is the key here. The judge doesn't want to hear that you received a bad deal at the time of sentencing; he wants to hear that you received a fair deal at the time of sentencing, but things are so different today that the offer you accepted no longer serves the interests of justice.
-The defendant has really turned his life around in a commendable way. He has remained law-abiding for some length of time and he has made serious contributions to society in the form of community service, etc. He was in a dark place years ago, but he has now completed counseling, earned a diploma, gotten married and had kids, and addressed the issues that once caused him to commit crimes. It helps if the petitioner can explain how this felony conviction is preventing him from doing more good for his community (e.g., if the case were reduced, he would have more opportunities to counsel at-risk kids, go back to school, join the military, become a licensed therapist, etc.).
-The DA agreed in plea negotiations that the defendant would be eligible for 17(b) relief after certain conditions were met, and those conditions have been met. Conditions might include paying all victim restitution, completing some form of counseling, remaining law-abiding for a period, etc.
Judges do not want to hear a 17(b) petitioner argue that he is factually innocent of the charges. If a petitioner maintains that did not commit the crime(s) for which he was convicted, he should have fought the case when he had the opportunity to do so. If he was convicted by a jury, he should have followed the proper channels for appealing his conviction. A 17(b) hearing is not the time to argue guilt or innocence -- those issues have been determined a long time ago. The 17(b) hearing is the petitioner's chance to convince a judge that his old felony conviction is no longer fair and appropriate.
-Gubernatorial Pardon
The last option for restoring gun rights in California is to apply for a pardon from the Governor. The Governor of California has the authority to pardon individuals for certain felony convictions that occurred within the state. The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.
According to the Governor's office:
A California Governor's pardon is an honor traditionally granted only to individuals who have
demonstrated exemplary behavior following conviction for a felony. A pardon will not be
granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction. The Governor has complete discretion in deciding whether to grant a pardon. A pardon is a privilege—not a right—and not granted to every person who applies.
A gubernatorial pardon will restore gun rights in most cases, unless the applicant was convicted of a crime involving dangerous weapons.
Consulting with an experienced, local attorney will significantly improve your chances of success if you're considering any of the options described here. If you or a loved one has questions about cleaning up a criminal record or restoring gun rights in California, call us for a free consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Gun Lawyer
If you are ineligible to purchase or possess firearms due to a criminal conviction in California, there are a couple ways by which you might be eligible to restore your Second Amendment rights.
California law offers several different options for cleaning up your old criminal record. Some (not all) of those options may have the effect of restoring gun rights. I'll try to explain the differences between these legal procedures.
Post Conviction Relief in California
After a defendant is convicted of a crime in California, state laws offer him a few different ways to clean up his criminal record. These procedures are collectively called "post-conviction relief".
Forms of post-conviction relief in California include:
-1203.4 Dismissal (commonly called an "expungement"): A successful 1203.4 petition may change a defendant's criminal record so that the case shows up as a "dismissal" rather than a "conviction" when a prospective employer runs a background check. It's a great option if you're trying to get back to work after being convicted of a crime, but an expungement does nothing for gun rights. If you read the instructions on the paperwork carefully, they clearly inform the petitioner that a 1203.4 dismissal will not relieve him of his duty to register as a sex offender and will not restore his rights to purchase or possess firearms.
-Prop. 47: In 2014, California voters approved Prop. 47. That ballot initiative reduced many crimes (such as drug possession) from felonies or "wobblers", to straight misdemeanors. That law became retroactive, so people who had been convicted of felonies many years ago were suddenly eligible to apply to have their old cases reduced, even if they performed poorly on probation and had subsequent arrests. Unfortunately, a retroactive reduction under Prop. 47 will not restore gun rights, either.
-PC 17(b): Section 17(b) of the California Penal Code allows judges to reduce some felonies to misdemeanors "in the interests of justice". Not all felony convictions are eligible for reduction under 17(b). Only "wobblers" potentially qualify. Wobblers are crimes that can charged as either felonies or misdemeanors, at the discretion of the DA. Common wobblers include domestic violence with injury, vehicular manslaughter and making criminal threats.
A reduction under 17(b) will restore firearms rights, assuming the defendant has no other disqualifying factors. Even if a felony conviction for domestic violence is reduced to a misdemeanor under 17(b), though, the applicant may still be ineligible to possess firearms. If the defendant and the victim were married at the time of the offense, federal law prohibits the defendant from purchasing or possessing firearms for life. If they were NOT married and the crime was treated as a misdemeanor, federal law does not apply. California law, however, still prohibits anyone with a misdemeanor conviction for domestic violence from possessing firearms for a period of 10 years following the conviction.
A judge may grant a 17(b) petition at any time -- before trial, after trial, while the defendant is serving a sentence, or after the defendant has completed his sentence.
In order to receive a reduction under 17(b), the applicant must demonstrate "good cause", and must demonstrate that the requested relief "serves the interests of justice". There is no magic formula for satisfying these requirements. Judges are reluctant to grant these requests, so the petitioner must be prepared with some pretty compelling arguments. In almost every post-conviction 17(b) hearing I've ever attended, the judge begins the proceedings with some version of this speech:
Back when this case was filed, the DA had the choice of treating the matter as either a felony or a misdemeanor. They made the decision to file a felony charge, based on the nature of the offense and the defendant's criminal history. The defendant had a fair opportunity to negotiate a settlement and he chose to accept a plea deal which included a felony conviction. He did not have to accept that deal, but he did so because it was in his best interests at the time. Now he wants to back out of that deal. Explain to me why I should allow him to renege on his end of the bargain.
Judges like to hear these types of arguments (if they're true and relevant):
-Due to some change in circumstances, a plea deal that seemed fair at the time is no longer fair. "Change in circumstances" is the key here. The judge doesn't want to hear that you received a bad deal at the time of sentencing; he wants to hear that you received a fair deal at the time of sentencing, but things are so different today that the offer you accepted no longer serves the interests of justice.
-The defendant has really turned his life around in a commendable way. He has remained law-abiding for some length of time and he has made serious contributions to society in the form of community service, etc. He was in a dark place years ago, but he has now completed counseling, earned a diploma, gotten married and had kids, and addressed the issues that once caused him to commit crimes. It helps if the petitioner can explain how this felony conviction is preventing him from doing more good for his community (e.g., if the case were reduced, he would have more opportunities to counsel at-risk kids, go back to school, join the military, become a licensed therapist, etc.).
-The DA agreed in plea negotiations that the defendant would be eligible for 17(b) relief after certain conditions were met, and those conditions have been met. Conditions might include paying all victim restitution, completing some form of counseling, remaining law-abiding for a period, etc.
Judges do not want to hear a 17(b) petitioner argue that he is factually innocent of the charges. If a petitioner maintains that did not commit the crime(s) for which he was convicted, he should have fought the case when he had the opportunity to do so. If he was convicted by a jury, he should have followed the proper channels for appealing his conviction. A 17(b) hearing is not the time to argue guilt or innocence -- those issues have been determined a long time ago. The 17(b) hearing is the petitioner's chance to convince a judge that his old felony conviction is no longer fair and appropriate.
-Gubernatorial Pardon
The last option for restoring gun rights in California is to apply for a pardon from the Governor. The Governor of California has the authority to pardon individuals for certain felony convictions that occurred within the state. The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.
According to the Governor's office:
A California Governor's pardon is an honor traditionally granted only to individuals who have
demonstrated exemplary behavior following conviction for a felony. A pardon will not be
granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction. The Governor has complete discretion in deciding whether to grant a pardon. A pardon is a privilege—not a right—and not granted to every person who applies.
A gubernatorial pardon will restore gun rights in most cases, unless the applicant was convicted of a crime involving dangerous weapons.
Consulting with an experienced, local attorney will significantly improve your chances of success if you're considering any of the options described here. If you or a loved one has questions about cleaning up a criminal record or restoring gun rights in California, call us for a free consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Gun Lawyer
Tuesday, January 5, 2016
What Does Obama's New Executive Order Mean for Gun Owners in California?
Cool picture stolen from combatarms.wikia.com
President Obama announced a package of new executive orders today, collectively aimed at reducing gun violence in America.
One key provision that has attracted a lot of media attention has been Obama's proposal to tighten the so-called "gun show loophole". Federal law currently requires all gun dealers to conduct background checks before selling firearms to members of the public. A loophole in the federal rules, however, allows private individuals (non-gun dealers) to sell guns to each other without conducting any checks on the purchaser's eligibility to possess weapons.
The president cannot simply close this loophole unilaterally, because only Congress can make federal laws. He can, however, order the Bureau of Alcohol, Tobacco, Firearms & Explosives to redefine who counts as a "gun dealer". By expanding the definition of "gun dealer", more sellers will now be required to conduct background checks on prospective buyers.
So what does this new rule mean for gun owners in California? Absolutely nothing. California law already requires all private gun sales to be conducted through a licensed firearms dealer (called a "private party transfer"). There is no "gun show loophole" in California.
If you or a loved one has questions about firearms in California, call us for a free attorney consultation. (714) 505-2468. Ask for John. Thanks for reading.
Monday, December 28, 2015
New California Gun Laws Take Effect in 2016
Cool picture stolen from activistpost.com
California already has some of the most complicated, restrictive gun laws in the United States. Our long list of no-nos is about to get a little longer in 2016. Here are some of the new anti-gun laws that are slated to take effect:
Gun Violence Restraining Orders
I've previously written about Gun Violence Restraining Orders on this blog. That post is available here. California courts will begin issuing Gun Violence Restraining Orders on January 1, 2016. As their name implies, GVROs will have the effect of prohibiting certain individuals from owning or possessing firearms and ammunition. Immediate family members may petition the courts for a GVRO if they believe that a subject poses a serious danger to himself or others. Unlike other types of restraining orders, the new law will also allow police officers to directly file petitions in civil court to strip individuals of their gun rights.
If you've ever been involved in a restraining order case, you know just how arbitrary and capricious the process can be. Each side usually has about 2 minutes to present their arguments to a judge, often without the assistance of an attorney. Parties are unprepared and nervous. They don't fully understand the issues and the rules of evidence. Their witnesses fail to appear. Their best evidence is inadmissible. A judge has to make a ruling on the spot, sometimes based on a "hunch". Starting 1/1/16, courts will have another tool for stripping your 2nd Amendment rights.
Gun Violence Restraining Orders might save lives. They might not. Of course, gun violence is already illegal, but criminals don't seem to mind breaking the law. That's what makes them criminals. One thing is for sure: the new law will clog the courts and keep lawyers (like me) busy. It will be applied arbitrarily and it will make great blog fodder. Stay tuned to see how it plays out.
New Government Regulations for BB Guns and Other Toy Weapons
California will impose new rules on airsoft weapons and other toy guns in 2016. The law will also be amended to include BB guns within the definition of "imitation firearms". All toy guns, including BB guns, will be subject to new rules regarding their coloration. Current federal regulations mandate that toy guns must include a distinctive, blaze orange ring around the muzzle (the opening of the barrel, commonly known as the "business end"). In addition to that requirement, BB guns and other toy guns sold in California will be required to feature blaze orange coloration around the trigger guard and the circumference of the pistol grip, or else the entire exterior surface of the toy must be brightly colored or completely transparent.
This new rule is obviously intended to prevent cases in which police officers shoot children because they mistakenly believe that the child's toy is a real weapon. To my knowledge, such tragedies have occurred twice in the past several years -- once in California and once in Ohio. Meanwhile, 16,000 arthritis patients die from the toxic effects of Aspirin and other anti-inflammatory drugs every year in the United States.
The new law about brightly-colored toy guns was obviously authored by someone who has not followed the latest trends in gun ownership. In the past couple years, gun ownership among women has skyrocketed. Gun manufactures have responded to the new demand by specifically designing guns for the female demographic. These guns are...wait for it...brightly colored! If lots of real firearms are now being manufactured in bright colors, requiring toy guns to also feature bright colors seems to miss the point. Here's a picture of the new .38 special from Charter Arms:
Promotional photo from budsgunshop.com
Concealed Weapons on Campus
The biggest head-scratcher of all these new California gun laws is SB-707. That law will prohibit concealed weapons permit-holders from carrying firearms onto the campus of any school or university. A violation may be punishable by up to 4 years in prison.
I'm still wrapping my head around this one. If there was some rational reasoning behind the law, this is the part where I would try to explain it. There have been plenty of instances over the past few years wherein a deranged madman has perpetrated a mass shooting on the grounds of a school. To my knowledge, exactly zero of them have been licensed concealed weapon permit-holders. They have all been criminals who obviously weren't deterred by existing laws against murder.
The new law will apply exclusively to law-abiding adults who have undergone extensive background checks. It will not prevent lunatics from bringing assault rifles into classrooms; it will only prevent victims from defending themselves.
If you or a loved one has questions about gun laws in California, call our office for a free attorney consultation. We might not like them, but we understand the goofy rules that govern gun ownership in the Golden State. (714) 505-2468. Ask for John.
Thanks for reading.
Santa Ana Gun Lawyer
Thanks for reading.
Santa Ana Gun Lawyer
Thursday, December 17, 2015
Gun Violence Restraining Orders in California
Since 2016, courts in California have been issuing "Gun Violence Restraining Orders".
The procedures are similar to those that apply in cases of domestic violence, elder abuse and civil harassment, with a few notable exceptions.
What is a Gun Violence Restraining Order?
As its name implies, a Gun Violence Restraining Order may prohibit a specific individual from owning or possessing firearms and ammunition. The person seeking the order is called the "petitioner". The subject of the order is called the "respondent".
A judge will grant a Gun Violence Restraining Order if the petitioner can prove 2 things:
1) That the respondent poses a significant danger of personal injury to himself and / or others by having possession of a firearm, AND
2) That other, less-restrictive alternatives have been tried and found to be ineffective, or are inadequate and inappropriate for the circumstances.
If the order is granted, the subject must surrender all firearms and ammunition in his possession to the local police or he may sell them to a licensed firearms dealer within 24 hours.
Who may apply for a Gun Violence Restraining Order?
Immediate family members of the subject are the only people who may petition the court for a gun violence restraining order. "Immediate family members" are defined as the subject's spouse, domestic partner, parent, child, sibling, household member, or person who had resided in the subject's household within the prior 6 months.
At the moment, the law does not allow for girlfriends, boyfriends, classmates, coworkers or other associates to petition for gun violence restraining orders if those people do not currently live with the subject and have not lived with the subject during the previous 6 months.
One area in which gun violence restraining orders differ from other types of restraining orders: Police may directly file their own petitions for gun violence restraining orders against individuals. With other types of restraining orders, the person who has been the victim of harassment must petition the court on his or her own behalf.
What is the procedure for obtaining a Gun Violence Restraining Order?
A judge may issue a temporary emergency Gun Violence Restraining Order if a police officer asserts, and the court finds, that "reasonable cause" exists to believe that the subject poses an immediate danger to himself or others, and that less-restrictive alternatives are inadequate. A temporary emergency order may remain in effect for up to 21 days. After 21 days, the temporary order expires.
The court may also issue an "ex parte" order upon the application of a police officer or an immediate family member of the subject. At the initial hearing on an ex parte order, the petitioner makes his or her arguments to a judge, but the respondent has no legal right to any "notice" or opportunity to present his own argument.
If the judge grants an ex parte order, then the respondent must immediately surrender any guns or ammunition in his possession. The court must schedule another hearing within 21 days, at which time the subject WILL have a chance to present his own side of the story and argue his case. At the hearing, the petitioner bears the burden of proving any allegations by "clear and convincing evidence".
After hearing arguments from both the petitioner and the respondent, the judge will decide whether or not to grant a gun violence restraining order for up to one year.
If the judge grants an ex parte order, then the respondent must immediately surrender any guns or ammunition in his possession. The court must schedule another hearing within 21 days, at which time the subject WILL have a chance to present his own side of the story and argue his case. At the hearing, the petitioner bears the burden of proving any allegations by "clear and convincing evidence".
After hearing arguments from both the petitioner and the respondent, the judge will decide whether or not to grant a gun violence restraining order for up to one year.
What criteria will a judge consider at the hearing?
Section 18155 of the California Penal Code lists several criteria that a judge may consider in determining whether or not the respondent poses a "significant danger of personal injury to himself or others". Most of these criteria are pretty intuitive: the person has recently made threats of violence against himself or others, the person has engaged in a pattern of violent acts within the previous year, or has a history of recklessly brandishing weapons, etc.
Some of the criteria, though, make almost no sense. For example, PC 18155(b)(1)(G) says that a judge may consider evidence that the respondent has acquired firearms or ammunition within the previous 6 months as proof that the person poses a "significant danger". Think about that for a second: purchasing a firearm and / or ammo may be considered proof that a person should not be allowed to possess firearms and / or ammo.
This new package of laws only took effect recently, so courts haven't had a chance to reinterpret all of the nuances. I have a lot of questions about how this will play out in practice, but all we can do is wait and see right now.
Everybody likes the idea of taking guns away from bad guys, but nobody likes "big government" arbitrarily curtailing our Constitutional rights. Stay tuned to see how this plays out.
If you or a loved one has questions about Gun Violence Restraining Orders in California, call for a free attorney consultation. (714) 449 3335. Ask for John.
Thanks for reading.
Thursday, November 19, 2015
Appearing in Court at the West Orange County Justice Center in Westminster: What to Expect
Part 4 in my series about appearing in court in Orange County. Today's post is focused specifically on the West Justice Center in Westminster. For more information about appearing in Santa Ana, Fullerton or Newport Beach, read my previous posts, below.
The West Orange County Justice Center is located at 1841 13th Street in Westminster, about 1 block east of Beach Blvd. From the 22 freeway, exit at Beach Blvd and head south. From the 405 Freeway, exit at Beach and head north.
The Westminster courthouse hears criminal cases from Costa Mesa, Cypress, Fountain Valley, Garden Grove, Huntington Beach, Los Alamitos, Seal Beach, Stanton and Westminster.
There are 3 parking lots -- one reserved for jurors, a free lot and a garage that charges to park. The free lot fills up early, so show up before 8:15 to save some money on parking.
Like the Harbor Justice Center, the courthouse in Westminster features an outdoor walk-up window for the clerk's office. You can make a payment, request an extension, reserve a court date, or obtain information about your case without going through the security screening process.
Also like the other courts in Orange County, you must find your name on the electronic display board as soon as you enter the building. The board will direct you to the appropriate courtroom.
Most misdemeanor arraignments and traffic matters are heard downstairs, in department W-3. For more information about what to expect at your misdemeanor arraignment, read my post about appearing at the North Justice Center in Fullerton, below.
If you plead "not guilty" at your misdemeanor arraignment, subsequent pre-trial conferences will be heard upstairs, in department W-15.
Most felonies are heard downstairs in departments W-1 or W-2. Once felony cases are set for preliminary hearings or motions, they are assigned out to a different department, depending on availability.
The West Justice Center is the smallest courthouse in the Orange County justice system. They pack a lot of people into a few rooms, so it gets a little crowded. There's no cafeteria inside the building, but there is a vending machine at the north end of the second floor. There's also a hot dog vendor out front if you're brave and hungry enough.
If you or a loved one has to appear in court at the West Justice Center in Orange County, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Westminster Criminal Defense Attorney
The West Orange County Justice Center is located at 1841 13th Street in Westminster, about 1 block east of Beach Blvd. From the 22 freeway, exit at Beach Blvd and head south. From the 405 Freeway, exit at Beach and head north.
The Westminster courthouse hears criminal cases from Costa Mesa, Cypress, Fountain Valley, Garden Grove, Huntington Beach, Los Alamitos, Seal Beach, Stanton and Westminster.
There are 3 parking lots -- one reserved for jurors, a free lot and a garage that charges to park. The free lot fills up early, so show up before 8:15 to save some money on parking.
Like the Harbor Justice Center, the courthouse in Westminster features an outdoor walk-up window for the clerk's office. You can make a payment, request an extension, reserve a court date, or obtain information about your case without going through the security screening process.
Also like the other courts in Orange County, you must find your name on the electronic display board as soon as you enter the building. The board will direct you to the appropriate courtroom.
Most misdemeanor arraignments and traffic matters are heard downstairs, in department W-3. For more information about what to expect at your misdemeanor arraignment, read my post about appearing at the North Justice Center in Fullerton, below.
If you plead "not guilty" at your misdemeanor arraignment, subsequent pre-trial conferences will be heard upstairs, in department W-15.
Most felonies are heard downstairs in departments W-1 or W-2. Once felony cases are set for preliminary hearings or motions, they are assigned out to a different department, depending on availability.
The West Justice Center is the smallest courthouse in the Orange County justice system. They pack a lot of people into a few rooms, so it gets a little crowded. There's no cafeteria inside the building, but there is a vending machine at the north end of the second floor. There's also a hot dog vendor out front if you're brave and hungry enough.
If you or a loved one has to appear in court at the West Justice Center in Orange County, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Westminster Criminal Defense Attorney
Wednesday, November 18, 2015
Appearing in Court at the Harbor Justice Center in Newport Beach: What to Expect
The Harbor Justice Center is located at 4601 Jamboree Rd. in Newport Beach, CA. From the 405 freeway, exit at Jamboree and head west for about a mile. From the 73 toll road, exit at Bristol and head east on Jamboree for a mile.
The Harbor courthouse hears criminal matters from Aliso Viejo, Irvine, Dana Point, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Forest, Mission Viejo, Newport Beach, Rancho Santa Margarita, San Clemente and San Juan Capistrano.
There is a large lot with free parking, but it fills up quickly. Arrive early, or else plan to circle the lot for a while.
If you need to make a payment or speak with a clerk about your case, you can do so at the outdoor walk-up window, located next door to the building's main entrance. The walk-up window allows many people to quickly and conveniently handle their matters without going through the security screening process.
Like all the other courts in Orange County, security screening includes metal detectors and x-rays of any bags. They will not allow you to bring weapons, tools, sporting equipment, skateboards or cigarette lighters into the building.
Once you're inside the building, find your name on the electronic display board, near the stairs. The board will direct you to the appropriate courtroom. If your name is not on the monitor, speak to the clerk.
Most misdemeanor arraignments are heard upstairs, in department H-8. For more information about what to expect at a misdemeanor arraignment, see my previous post about appearing in the North Justice Center.
If you plead "not guilty" at your arraignment in a misdemeanor case, your subsequent pre-trial conferences will be conducted across the hall, in department H-1.
Most felony arraignments are now being heard in department H-7, but check the monitor to be safe.
Remember to dress appropriately -- no hats, sandals, shorts or tank-tops. Silence your phone or turn it off completely so that it doesn't ring in the courtroom.
There is no cafeteria inside the Harbor Justice Center, but there are plenty of places to eat in the area.
If you or a loved one has a court date at the Harbor Justice Center, call us for a free consultation. (714) 449 3335. Ask for John.
Thanks for reading.
Newport Beach Criminal Defense Attorney
The Harbor courthouse hears criminal matters from Aliso Viejo, Irvine, Dana Point, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Forest, Mission Viejo, Newport Beach, Rancho Santa Margarita, San Clemente and San Juan Capistrano.
There is a large lot with free parking, but it fills up quickly. Arrive early, or else plan to circle the lot for a while.
If you need to make a payment or speak with a clerk about your case, you can do so at the outdoor walk-up window, located next door to the building's main entrance. The walk-up window allows many people to quickly and conveniently handle their matters without going through the security screening process.
Like all the other courts in Orange County, security screening includes metal detectors and x-rays of any bags. They will not allow you to bring weapons, tools, sporting equipment, skateboards or cigarette lighters into the building.
Once you're inside the building, find your name on the electronic display board, near the stairs. The board will direct you to the appropriate courtroom. If your name is not on the monitor, speak to the clerk.
Most misdemeanor arraignments are heard upstairs, in department H-8. For more information about what to expect at a misdemeanor arraignment, see my previous post about appearing in the North Justice Center.
If you plead "not guilty" at your arraignment in a misdemeanor case, your subsequent pre-trial conferences will be conducted across the hall, in department H-1.
Most felony arraignments are now being heard in department H-7, but check the monitor to be safe.
Remember to dress appropriately -- no hats, sandals, shorts or tank-tops. Silence your phone or turn it off completely so that it doesn't ring in the courtroom.
There is no cafeteria inside the Harbor Justice Center, but there are plenty of places to eat in the area.
If you or a loved one has a court date at the Harbor Justice Center, call us for a free consultation. (714) 449 3335. Ask for John.
Thanks for reading.
Newport Beach Criminal Defense Attorney
Subscribe to:
Posts (Atom)