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View Full Version : Theseus Appeal - DA Brief - Update 7/25/11


Theseus
02-07-2011, 9:23 PM
So, I have been told not to discuss the facts, or our strategy. All I am doing is providing you with what would otherwise be publicly available documents.

Here is the DA's Brief and the Request for Judicial Notice in my appeal.

Also, if someone is willing to host the files so that we don't have to use up Calguns bandwidth. . . that might be good. But if they are OK with it, I am.

http://onlinegunsafe.com/docs/theseus/DAsBrief.pdf
http://onlinegunsafe.com/docs/theseu...cialNotice.pdf (http://onlinegunsafe.com/docs/theseus/DAsJudicialNotice.pdf)
http://onlinegunsafe.com/docs/theseus/ScottAOBFinal.pdf
http://www.calguns.net/calgunforum/attachment.php?attachmentid=103401&stc=1&d=1311564431 (http://esltutor.com.hk/documents/Scott%20Reply%20Brief.pdf)
http://www.calguns.net/calgunforum/attachment.php?attachmentid=107693&stc=1&d=1311564599

anthonyca
02-07-2011, 9:35 PM
I am on my phone so it's really slow to load that brief that exceeded the word limit.

The part about them saying that availing yourself from the private property exemption is absurd and would frustrate the goals of the gun free school zone act will be interesting.

That pesky constitution and those darn natural rights, always getting in the way of tyrants.

E Pluribus Unum
02-07-2011, 9:50 PM
So, I have been told not to discuss the facts, or our strategy. All I am doing is providing you with what would otherwise be publicly available documents.

Here is the DA's Brief and the Request for Judicial Notice in my appeal.

Did you ever post your brief?

Theseus
02-07-2011, 10:07 PM
No, but I guess I should, huh?

RP1911
02-07-2011, 10:36 PM
The way i see it, there are two prongs that could set you free.

1) Attack the constitunality of 626.9

2) There's reasonable doubt that you knew there was a school there. several ways to get to the location, just because a building can be seen does not mean you know what it is unless you can read the sign on the building. No one mentioned when the school zone signs were installed. It would be interesting to get records on that (work order and installation date).

As far as 'private property', that's going to be a tough one.

snobord99
02-07-2011, 11:49 PM
The way i see it, there are two prongs that could set you free.

1) Attack the constitunality of 626.9

2) There's reasonable doubt that you knew there was a school there. several ways to get to the location, just because a building can be seen does not mean you know what it is unless you can read the sign on the building. No one mentioned when the school zone signs were installed. It would be interesting to get records on that (work order and installation date).

As far as 'private property', that's going to be a tough one.

1 has a better chance than 2. You'll be hard pressed to find an appellate court that's going to say there was reasonable doubt when the jury decided via conviction that there was none. The only time that really happens is if the record is completely devoid of any evidence to prove the required element.

As for "private property"...Theseus already knows where I stand on that one.

I thought it was up in the 2nd District. Now I see why the DA is handling it instead of the AG.

Veggie
02-07-2011, 11:53 PM
Good luck man. I have a feeling you're gonna win.

E Pluribus Unum
02-07-2011, 11:55 PM
At trial no one made it apparent that the officers themselves did not know they were in a school zone?

snobord99
02-08-2011, 12:37 AM
At trial no one made it apparent that the officers themselves did not know they were in a school zone?

My impression from the record I've seen thus far (the pre-trial motions and whatever was posted by Theseus before) and the briefs is that the officers were aware the school was there but were unaware that having a gun within 1,000 feet of a school is prohibited.

I know that area quite well (I live pretty close by) and never noticed the school there until Theseus's case came about. I had probably driven by close to 100 times prior to this case. I'm sure I've "seen" the school signs there as I drove by, but it never really registered in my head there was a school there. That said, after this I noted the location of the school and as I first drove by after "finding out" the school was there, it's pretty obvious that it's not more than 1,000 feet from that laundromat.

I mention this because I find it hard to believe that the officers didn't know the school was within 1,000 feet of that laundromat. Cops generally know their neighborhood fairly well and I find it VERY hard to believe that the officers involved wouldn't have known there was a school there (unlike myself). If they knew the school was there, as I'm fairly certain they did, then I believe it should also be very apparent to them that it was within 1,000 feet. It really is pretty obvious that it's within 1,000 feet if you know the school is there. Thus, I can see them not knowing that it was prohibited, but I can't see them not knowing that the school is within 1,000 feet. In other words, I'm pretty sure they knew they were in the area of a school; what they didn't know was that there was such a thing as a "school zone" for these purposes.

Blackhawk556
02-08-2011, 1:13 AM
I can't open the docs on my phone, can someone post what this case is about? Thanks

Librarian
02-08-2011, 1:35 AM
I can't open the docs on my phone, can someone post what this case is about? Thanks

VERY briefly....

Theseus was UOCing outside a laundromat that happened to be in a school zone. The officers who contacted him did not make an arrest, but a few days later he was charged with violating the 626.9 Gun Free School Zone law. At trial he was found guilty of a misdemeanor, received a suspended sentence and got 3 years probation.

The appeal is related to the prosecution using a definition of 'public place' and the trial court not allowing a 'private property' (the laundromat) exemption from 626.9.

Better to read the docs when you can get to a better device.

Blackhawk556
02-08-2011, 2:03 AM
^^^Thanks, you always have the answers :-). This is the first I hear of this case

Purple K
02-08-2011, 4:06 AM
Good Luck on your appeal!

Havoc70
02-08-2011, 7:09 AM
If you want I can put the files on my web server. Good luck with the appeal!

choprzrul
02-08-2011, 7:15 AM
So, how can they say my front yard isn't private without a fence, but a laundromat that the public can readily walk into is private??? Seems to me that they want it both ways.

.

Window_Seat
02-08-2011, 8:26 AM
I wish you only the best for your appeal, and I hope you prevail 100%.

Erik.

Theseus
02-08-2011, 8:32 AM
1 has a better chance than 2. You'll be hard pressed to find an appellate court that's going to say there was reasonable doubt when the jury decided via conviction that there was none. The only time that really happens is if the record is completely devoid of any evidence to prove the required element.

As for "private property"...Theseus already knows where I stand on that one.

I thought it was up in the 2nd District. Now I see why the DA is handling it instead of the AG.

Man. . . I wish I could say more. . .

But I think, as far as the jury is concerned there were two issues, the greatest being that they were deliberating on a Friday afternoon around 3 PM. . . The second being that we didn't present a defense.

NightOwl
02-08-2011, 9:39 AM
Best of luck, Theseus. It was BS from the minute they charged you, outrageous when there was a conviction, and I sincerely hope that you get things straightened out with this appeal. Along with a follow-up suit for some compensation due to having had to get rid of your guns in the first place.

OC_Gunman
02-08-2011, 11:31 AM
Sorry if this has already been hashed out earlier, but it looks like the decision to re-investigate and prosecute came after the initial encounter. Seems like the responding officers let you go without citation. But later, at the request of his lieutenant, one of the responding officers wrote a subsequent report which led to the citation and prosecution. Do we know at who's behest the incident was re-investigated? A gun-hating higher-ranking cop in the station, or an ambitious district attorney? Can we get their names?

Decoligny
02-08-2011, 2:29 PM
So, how can they say my front yard isn't private without a fence, but a laundromat that the public can readily walk into is private??? Seems to me that they want it both ways.

.

Actually they do have it both ways. Just like a Taurus Judge doesn't meet the definition of a "shotgun", yet it is considered a "short barrelled shotgun".

Two different laws in question and two very different uses of legal language.

The case law that states your front yard is a "public place" deals with PC 12031, which has language that states you can't carry a loaded firearm "in any public place" in an incoporated city...etc. "Any public place" was defined by case law to mean anywhere the public has unrestrained access to, i.e. an unfenced front yard.

PC 626.9 has no such "public place" language, and it even has a specific exemption for "private property". To the common person's interpretation, that means that any place that isn't either public property or government property is by definition private property.

Untamed1972
02-08-2011, 2:42 PM
Sorry if this has already been hashed out earlier, but it looks like the decision to re-investigate and prosecute came after the initial encounter. Seems like the responding officers let you go without citation. But later, at the request of his lieutenant, one of the responding officers wrote a subsequent report which led to the citation and prosecution. Do we know at who's behest the incident was re-investigated? A gun-hating higher-ranking cop in the station, or an ambitious district attorney? Can we get their names?

How does the "stale misdemeanor rule" not come into play in this case? If the responding officers let you go at the initial contact how can they come back and charge you for it later?

Is 626.9 one of the handful of specific exceptions to the stale misdemeanor rule?

Librarian
02-08-2011, 2:54 PM
PC 626.9 has no such "public place" language, and it even has a specific exemption for "private property". To the common person's interpretation, that means that any place that isn't either public property or government property is by definition private property.

Which is why the DA's argument is bemusing: As will be seen, allowing Appellant to avail himself of the private property defense would completely frustrate the goals of section 626.9, which is known as The Gun Free School Zone Act of 1995 (hereafter The Gun Act), and would lead to absurd results. It's hardly our fault if the legislature wrote the law poorly.

Joe
02-08-2011, 2:57 PM
Awesome. Hope you get a ruling in your favor.

greg36f
02-08-2011, 4:43 PM
How does the "stale misdemeanor rule" not come into play in this case? If the responding officers let you go at the initial contact how can they come back and charge you for it later?

Is 626.9 one of the handful of specific exceptions to the stale misdemeanor rule?


They have one year to file after the crime occured.

Theseus
02-08-2011, 5:34 PM
Which is why the DA's argument is bemusing: It's hardly our fault if the legislature wrote the law poorly.

Like the 2A, I don't think 626.9 is so vague, it is only claimed to be so by people who would pervert the words to their own means. When I first read 626.9 I was not clear, but after this situation and the research into the legislative history, it is clear what the intentions were and how they balanced to achieve those goals, and thus why they used the wording and organization they did.

Purple K
02-20-2011, 10:30 PM
Any news?

Falconis
02-20-2011, 10:37 PM
They have one year to file after the crime occured.

and they were continually investigating the matter. Stale doesnt apply here.

Sgt Raven
02-20-2011, 11:13 PM
Actually they do have it both ways. Just like a Taurus Judge doesn't meet the definition of a "shotgun", yet it is considered a "short barrelled shotgun".

Two different laws in question and two very different uses of legal language.

The case law that states your front yard is a "public place" deals with PC 12031, which has language that states you can't carry a loaded firearm "in any public place" in an incoporated city...etc. "Any public place" was defined by case law to mean anywhere the public has unrestrained access to, i.e. an unfenced front yard.

PC 626.9 has no such "public place" language, and it even has a specific exemption for "private property". To the common person's interpretation, that means that any place that isn't either public property or government property is by definition private property.


IIRC didn't the property owner post signs that the parking lot and businesses were private property? And the Judge ruled that they couldn't show the Jury those signs. :rolleyes:

locosway
02-21-2011, 12:04 AM
If you still need those files hosted here they are.

http://onlinegunsafe.com/docs/theseus/DAsBrief.pdf
http://onlinegunsafe.com/docs/theseus/DAsJudicialNotice.pdf
http://onlinegunsafe.com/docs/theseus/ScottAOBFinal.pdf

They'll stay there forever unless you request to have them taken down.

Letitrip
02-21-2011, 12:22 AM
Good luck theseus. I have been to that area many times and i never noticed that school.

gotgunz
02-21-2011, 12:56 AM
Without reading through all the replies.....
Doesn't this pretty much make the private property defense valid?

(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.


Hell, I'm not a lawyer but even I can read and while I don't advocate UOC this seems to be a stretch on the DA's part....

BTW, who is this godsend of a DA anyways? :D

Anchors
02-21-2011, 2:18 AM
Good luck man.
The real blow is becoming prohibited.
I hope you at a bare minimum get your rights back.

Zorrm
02-22-2011, 11:37 PM
Wishing you the best of luck with this.

Monte
02-23-2011, 1:08 AM
Good luck, man. I really hope you beat this BS.

NightOwl
02-23-2011, 8:44 AM
Theseus, can you post when ya all expect the next bit of action in the case (from either side)? Just curious as to how long till the next update.

Theseus
06-21-2011, 9:20 PM
A quick update on this situation. My oral arguments were scheduled for May 5th, I believe, but the court delayed seeking more time to figure out the answer.

Due to other issues, the new oral arguments are to be held on June 23rd, as of last report. Cross your fingers, as I hear that they already have their minds made up and rule at that time.

wildhawker
06-21-2011, 9:21 PM
Also, if someone is willing to host the files so that we don't have to use up Calguns bandwidth. . . that might be good. But if they are OK with it, I am.

Email me the PDFs and I'll host them at the CGF Resources/Downloads section.

Theseus
06-21-2011, 9:24 PM
Email me the PDFs and I'll host them at the CGF Resources/Downloads section.

I believe that they are all hosted fine now, but if you would like, I can email them to you. But I would need email address. PM me.

Another option, you can get them from Gene. He has them all too, or at least he should.

**Also, take note that I added our responding brief to the files**

I have had it for some time, but I have fortunately been to busy to post it and keep everyone up-to-date.

Window_Seat
06-21-2011, 10:18 PM
As I said before, I hope you prevail.

Erik.

Librarian
06-21-2011, 11:37 PM
Nice brief - seems to address all the things you didn't get to say first time around.

I hope for good luck, and a smart, reasonable judge.

snobord99
06-21-2011, 11:40 PM
A quick update on this situation. My oral arguments were scheduled for May 5th, I believe, but the court delayed seeking more time to figure out the answer.

Due to other issues, the new oral arguments are to be held on June 23rd, as of last report. Cross your fingers, as I hear that they already have their minds made up and rule at that time.

Which courthouse and department is it in? I'm not sure if I'll be able to drop by, if so, I'd love watch. Oh, and what time is it calendared for?

Munk
06-22-2011, 2:17 AM
Such a great response. I hope things go well when the hearing goes down. When I browsed the DAsBrief, it seemed like they contributed nothing new to their arguments... it amounted to a childish saying of "nuh-uh" in response to your reply.

I found myself nitpicking spelling, punctuation, and grammar as I read the Scott Reply Brief. I feel that documents of this level of importance carry more impact when their structure is impeccable. Unfortunately, I'm sure I missed some errors and ignored a few places where a semicolon would be more effective.


if private property is open to the public than public, then it
does not qualify

comma, and "then" (with an "E").

lawful”and
needs a space.

statutes exception
apostrophe needed

private property exception only to those with
a possessory
missing word "to".

inference of fact that must
missed a "T"

Courts
violate constitutional due process guarantees when they impose
Extra word makes sentence unintelligible.

or judicial expansion requiring his him to personally conduct an
Off by one letter.

Theseus
06-22-2011, 3:01 AM
I don't believe that mine is the definitive (filed) version. I think the lawyer was simply attempting to give me the idea of the argument.

Theseus
06-22-2011, 3:02 AM
Which courthouse and department is it in? I'm not sure if I'll be able to drop by, if so, I'd love watch. Oh, and what time is it calendared for?

I don't know. This information was not provided to me as I am in Hong Kong and didn't need it.

Maestro Pistolero
06-22-2011, 9:44 AM
I don't believe that mine is the definitive (filed) version. I think the lawyer was simply attempting to give me the idea of the argument.

Good to know.

ripcurlksm
06-22-2011, 10:30 AM
We're all rooting for you Theseus!

mdhpper
06-22-2011, 12:22 PM
Good luck!

Beatone
06-22-2011, 1:59 PM
Still pulling for you to win.

FABIO GETS GOOSED!!!
06-22-2011, 2:41 PM
Here's the tentative ruling:

1. BR047957 SCOTT Ka M D

AFFIRM: The People were not precluded from moving to exclude appellant from advancing a private property defense based on the pretrial stipulation. The trial court did not err by preventing appellant from advancing a private property defense because privately owned property that is readily accessible to the general public does not constitute "private property" for the purpose of establishing a defense under Penal Code section 626.9, subdivision (c)(1). Sufficient evidence was presented to establish that appellant knew or reasonably should have known that he was within a school zone. The trial court properly denied appellant's request to include a mistake-of-fact jury instruction.

Riodog
06-22-2011, 4:14 PM
I don't know. This information was not provided to me as I am in Hong Kong and didn't need it.

My HERO! Ran like a fraidy cat did ya? I'm callin Dog the bounty hunter. Bring me back a sweet lil Chinese chick will ya?:D
Rio

MasterYong
06-22-2011, 4:31 PM
Tag.

:popcorn:

Librarian
06-22-2011, 4:52 PM
Here's the tentative ruling:

Is that your prediction, or your conclusion of the correct result from the law?

Curtis
06-22-2011, 5:07 PM
A very nice response. I hope your conviction is overturned.

How is your family? Are they with you in Hong Kong?

FABIO GETS GOOSED!!!
06-22-2011, 5:36 PM
Is that your prediction, or your conclusion of the correct result from the law?

Neither, it's the tentative ruling in the case from the appellate division.

ke6guj
06-22-2011, 5:42 PM
Neither, it's the tentative ruling in the case from the appellate division.

so, they already have a tentative ruling written (and it has been seen by more than the justices hearing the case), even before oral arguments have been heard?

FABIO GETS GOOSED!!!
06-22-2011, 6:59 PM
so, they already have a tentative ruling written (and it has been seen by more than the justices hearing the case), even before oral arguments have been heard?

Yes, the appellate division posts tentative rulings on the court website for each case on the calendar. There does not appear to be any chance they're going to change their mind on this one.

Shotgun Man
06-22-2011, 7:56 PM
Yes, the appellate division posts tentative rulings on the court website for each case on the calendar. There does not appear to be any chance they're going to change their mind on this one.

Link please?

Theseus
06-22-2011, 8:07 PM
Strangely though, if you read the briefs as supplied in post 1, you will notice they don't address all the issues at appeal, so there are some reasons why there might still be a chance, I think.

But who knows?

Also, my "running" had nothing directly to do with my case. I had been out of work for some time (over two years) and, with a fresh new criminal conviction in an already down-turned market, was proving difficult. Further, this issue has caused a lot of strain on my family. As much as I love the cause, I love my wife more. So moving to Hong Kong, with my family, was the best decision for me. We are still together, happy, and I have a job making more money per hour than I ever did in the US.

FABIO GETS GOOSED!!!
06-22-2011, 8:13 PM
Link please?

http://www.lasuperiorcourt.org/tentativeRulingNet/UI/Result.aspx?Referer=Index

Shotgun Man
06-22-2011, 9:00 PM
so, they already have a tentative ruling written (and it has been seen by more than the justices hearing the case), even before oral arguments have been heard?

Although reading the tentative ruling rankled, you would want it before oral arguments as otherwise it would be superfluous.

From the website:

The TENTATIVE RULINGS below are not final, but suggestive only to assist the parties in focusing their arguments or in deciding whether to submit without oral argument.

snobord99
06-22-2011, 9:19 PM
Strangely though, if you read the briefs as supplied in post 1, you will notice they don't address all the issues at appeal, so there are some reasons why there might still be a chance, I think.

But who knows?

I think they did. All I have is the tentative copy/pasted above (the link to the tentative isn't working right now so I don't know if there's more) but it looks to me like they addressed all the major contentions. There are "issues" that aren't mentioned in the tentative above, but based on your opening brief, those are all sub-issues to the three main contentions (which are addressed by the tentative).

eaglemike
06-22-2011, 11:14 PM
So it looks like they want to stay with the new definition of private property.
Redefining public place cannot be private property. Very interesting...... pretty sure I don't agree with this one.

ke6guj
06-22-2011, 11:23 PM
http://www.lasuperiorcourt.org/tentativeRulingNet/UI/Result.aspx?Referer=Index

thanks. I didn't realize they did that.

SoCal Bob
06-22-2011, 11:38 PM
I don't always agree with FGG but I can't help but think of this quote when he weighs in on a subject: "If everyone is thinking alike, someone isn't thinking." --- George Patton

Theseus
06-23-2011, 1:38 AM
I think they did. All I have is the tentative copy/pasted above (the link to the tentative isn't working right now so I don't know if there's more) but it looks to me like they addressed all the major contentions. There are "issues" that aren't mentioned in the tentative above, but based on your opening brief, those are all sub-issues to the three main contentions (which are addressed by the tentative).

Actually, they didn't address the ex-post-facto judicial expansion, the 2A issue, or the ...there was another one. . . but something like that.

Munk
06-23-2011, 2:24 AM
Actually, they didn't address the ex-post-facto judicial expansion, the 2A issue, or the ...there was another one. . . but something like that.

the lawmaker's intent. They had every opportunity to define "private property" as used within that specific law and chose not to do so when drafting the legislation, which defaults the meaning to property not owned/adminstered by the city/county/state/government/etc...

The ownership/administration aspect is why the sidewalk/easement is a no-go, but other property that's within its owner's scope of control/ownership SHOULD be good to go.

Theseus
06-23-2011, 7:15 AM
the lawmaker's intent. They had every opportunity to define "private property" as used within that specific law and chose not to do so when drafting the legislation, which defaults the meaning to property not owned/adminstered by the city/county/state/government/etc...

The ownership/administration aspect is why the sidewalk/easement is a no-go, but other property that's within its owner's scope of control/ownership SHOULD be good to go.

We have used this argument, but they court, to this point, refuses to accept that argument. Essentially they claim that, since the only purpose of 626.9 is to protect children, then the law would be frustrated if private property open to the public was exempt.

Uxi
06-23-2011, 8:47 AM
Strangely though, if you read the briefs as supplied in post 1, you will notice they don't address all the issues at appeal, so there are some reasons why there might still be a chance, I think.

But who knows?

Also, my "running" had nothing directly to do with my case. I had been out of work for some time (over two years) and, with a fresh new criminal conviction in an already down-turned market, was proving difficult. Further, this issue has caused a lot of strain on my family. As much as I love the cause, I love my wife more. So moving to Hong Kong, with my family, was the best decision for me. We are still together, happy, and I have a job making more money per hour than I ever did in the US.


Definitely gotta do what's best for your family, since going for the cause doesn't pay that well for most of us

What firearms rights are there in HK? I know a guy out there who's does competition shooting, but not sure on the details of what he shoots or when.

SteveH
06-23-2011, 2:07 PM
My impression from the record I've seen thus far (the pre-trial motions and whatever was posted by Theseus before) and the briefs is that the officers were aware the school was there but were unaware that having a gun within 1,000 feet of a school is prohibited.

I know that area quite well (I live pretty close by) and never noticed the school there until Theseus's case came about. I had probably driven by close to 100 times prior to this case. I'm sure I've "seen" the school signs there as I drove by, but it never really registered in my head there was a school there. That said, after this I noted the location of the school and as I first drove by after "finding out" the school was there, it's pretty obvious that it's not more than 1,000 feet from that laundromat.

I mention this because I find it hard to believe that the officers didn't know the school was within 1,000 feet of that laundromat. Cops generally know their neighborhood fairly well and I find it VERY hard to believe that the officers involved wouldn't have known there was a school there (unlike myself). If they knew the school was there, as I'm fairly certain they did, then I believe it should also be very apparent to them that it was within 1,000 feet. It really is pretty obvious that it's within 1,000 feet if you know the school is there. Thus, I can see them not knowing that it was prohibited, but I can't see them not knowing that the school is within 1,000 feet. In other words, I'm pretty sure they knew they were in the area of a school; what they didn't know was that there was such a thing as a "school zone" for these purposes.

I agree. The penal code is a big book and cops often get tunnel vision resulting in a narrow focus of enforcement and overlook violations of law from sections less frequently used.

The typical cop mindset when contacting someone: is he drunk, does he have a valid license, does he have warrants, is he on probation or parole, can i search him, does he have drugs or stolen property? If at the end of that process they dont have an obvious violation of law they end the contact. Then someone more experianced tells them "hey dummy, what about CPC XYZ." Doh!

Uxi
06-23-2011, 2:32 PM
Reading the brief, I recall again the verbiage: "written permission of the school district superintendent." Has anyone ever tried to get that permission? So any friends/relations/donors/benefactors of a school superintendent in their area are exempt with a written note?

nomidlname
06-23-2011, 3:59 PM
From what I have seen come out of the appeals court in California it's not going to go his way. Bunch of bobble headed left leaning progessive lawyers shaking their heads at each other....

I sincerly hope I am wrong though.

snobord99
06-23-2011, 4:23 PM
Actually, they didn't address the ex-post-facto judicial expansion, the 2A issue, or the ...there was another one. . . but something like that.

That's what I meant though. If you treat the tentative as the concluding paragraph in an opinion, these could all be sub-issues that could be covered by "[t]he trial court did not err by preventing appellant from advancing a private property defense because privately owned property that is readily accessible to the general public does not constitute "private property" for the purpose of establishing a defense under Penal Code section 626.9, subdivision (c)(1)" and we're just not seeing the discussion of it.

Riodog
06-23-2011, 4:41 PM
Strangely though, if you read the briefs as supplied in post 1, you will notice they don't address all the issues at appeal, so there are some reasons why there might still be a chance, I think.

But who knows?

Also, my "running" had nothing directly to do with my case. I had been out of work for some time (over two years) and, with a fresh new criminal conviction in an already down-turned market, was proving difficult. Further, this issue has caused a lot of strain on my family. As much as I love the cause, I love my wife more. So moving to Hong Kong, with my family, was the best decision for me. We are still together, happy, and I have a job making more money per hour than I ever did in the US.

Kool, I hope you know I was just hosin you.

On the other hand, HOW are the gun laws over there? Can you (anyone) own anything? I get so sick of hearin "can I legally carry my semi-auto flaregun if I keep the flares up my a**?" I could scream. Tell us about "over there". I'd really like to hear from someone who knows what they're talkin about instead of 'I heard from".
Rio

Theseus
06-23-2011, 5:13 PM
That's what I meant though. If you treat the tentative as the concluding paragraph in an opinion, these could all be sub-issues that could be covered by "[t]he trial court did not err by preventing appellant from advancing a private property defense because privately owned property that is readily accessible to the general public does not constitute "private property" for the purpose of establishing a defense under Penal Code section 626.9, subdivision (c)(1)" and we're just not seeing the discussion of it.

Well, I am still just hoping that 1. my lawyer was convincing at oral arguments enough to sway judgement; or 2. That they believe the issues not addressed are certified for the Court of Appeals.. . or whatever you call it.

As for HK, there is no private ownership in general but, as I understand it, you can get permission with justifiable need. It might just be the kind of situation with a competition shooter that gets the exemption. Otherwise, you can become a member of a gun-club and shoot there. Airsoft is HUGE here. . . a nice full-metal air pistol can be had as cheap as HK450/US$60. Nice M4 battery driven for HK1500/US$200

Theseus
06-26-2011, 5:45 PM
So oral arguments are done.

Briefly, my lawyer does not believe he swayed any ones mind, but the opinion is simply tentative at this point, we will see what happens when their ruling is handed down.

So, cross your fingers and, depending on the needs of the movement, pray for a useful outcome. Whatever it may mean for me.

anthonyca
06-26-2011, 6:25 PM
So oral arguments are done.

Briefly, my lawyer does not believe he swayed any ones mind, but the opinion is simply tentative at this point, we will see what happens when their ruling is handed down.

So, cross your fingers and, depending on the needs of the movement, pray for a useful outcome. Whatever it may mean for me.

Can you appeal to a higher court? Can the DA do the same?

Theseus
06-26-2011, 7:03 PM
At this time I can't make any further comments. We will have to see what happens. We don't wish to show our hands yet.

snobord99
06-26-2011, 10:17 PM
Can you appeal to a higher court? Can the DA do the same?

I'll answer this. The answer to both questions is yes; however, that doesn't mean they will.

Oh, and I'll add that I believe it's appealed further, it would go to the Fourth District Court of Appeals, in which case the DA's involvement should be over and the case handed off to the AG.

IGOTDIRT4U
06-27-2011, 7:30 AM
I'll answer this. The answer to both questions is yes; however, that doesn't mean they will.

Oh, and I'll add that I believe it's appealed further, it would go to the Fourth District Court of Appeals, in which case the DA's involvement should be over and the case handed off to the AG.

What's the make up of the 4th DCA?

snobord99
06-27-2011, 10:37 AM
What's the make up of the 4th DCA?

Oops, sorry. I meant 2nd District, not 4th. I had San Diego (4th District) in my head...

By make up I assume you mean the justices(?). If so, you can get that info from the CA Courts website (http://www.courts.ca.gov/courtsofappeal.htm). Just click on the district you're interested in on the left side and then choose justices.

Munk
06-27-2011, 12:51 PM
your lawyer's pessimistic outlook seems sad to me. I hope this is resolved in one of two ways: Favorably for you, or favorably for Californians.

Ahhh... strategery.

Theseus
07-24-2011, 8:33 PM
Update: Opinion is out and can be found on first post.

Essentially, property open to the public, for the purposes of 626.9 are not private property.

Also, you can only have a defense, if they allow you to have a defense. If they remove the tools to have a defense, and then don't present a defense, then you can't argue that you weren't provided a defense.

Kid Stanislaus
07-24-2011, 8:37 PM
Also, you can only have a defense, if they allow you to have a defense. If they remove the tools to have a defense, and then don't present a defense, then you can't argue that you weren't provided a defense.

HUH? Give us a "post game" analysis of that, will ya?:confused:

Theseus
07-24-2011, 8:50 PM
HUH? Give us a "post game" analysis of that, will ya?:confused:

Steps. . .


Stipulation - We agreed with the DA to say that the property was private property, open to the public. This removed the "fact" from the jury and made it purely an question of law in terms of the definition of private property.
DA moved to preclude a private property defense asking the judge to rule the property wasn't, as a matter of law, private property for the meaning of 626.9. - The judge agreed.
We requested a "Mistake of Fact" instruction to use as a defense to the "know or reasonably should know". We were instructed that such a defense would negate his previous ruling that it was not private property and thus, we could not. (i.e. I could not go on the stand and say "I didn't know I was in a school zone because I thought it was private property," as this would confuse the jury about his ruling the private property was not private property.)
On appeal, because we provided no evidence that there was a mistake of fact, we are not allowed to use the denial of that instruction as a means for appeal.

End-run. . . Even if I had wanted to prevent a defense, we were ultimately left with no useable evidence and only my word. We could say the property was "private property" but not to the significance of what it meant and, with the "private property" exemption removed from the jury instructions, it would have meant nothing. - Viable defense denied.

Uxi
07-24-2011, 8:58 PM
Private property isn't private if the general public has access. F'ing nonsense if these fools can't distinguish between a sidewalk (which is just about always public property maintained by the city) and a business.

Agent Orange
07-24-2011, 9:03 PM
Huh. And all this time I thought you were inside the business. Not sure why you'd even appeal this. Also not sure why you put yourself in the original situation in the first place. I hope the OC community learns from this but I doubt they will.

Theseus
07-24-2011, 9:06 PM
I was "in the business" and the charge was not related to that. The charge was when I was smoking a cigarette and having a boba milk tea in front of the business.

Agent Orange
07-24-2011, 9:12 PM
Well, if you were in a public place within a GFSZ you were in violation of the law. Sure, it's a stupid law, but it's still the law and it seems you were plainly in violation of it. If it were me I would have taken my lumps and moved on. Then again if it were me I wouldn't have been parading around in public with an unloaded pistol.

Apocalypsenerd
07-24-2011, 9:14 PM
Appeal, because it's a stupid law.

Uxi
07-24-2011, 9:18 PM
Here we go. :rolleyes: Very discouraging when even people around here would effectively be on the same side as Saldana and Portantino et al.

The law is asinine and should be unconstitutional since it prohibits "bearing" arms. The only way to push it is to have someone get victimized it. If you're happy to surrender your rights, Agent Orange, that's fine, but you surely recognize not everyone is going to just roll over and ask for another?

In his situation, though, IIRC he actually didn't know he was in a GFSZ, which is the major problem in the law. It's VERY easy to stray into one and the government puts the onus on anyone choosing to exercise their right.

Agent Orange
07-24-2011, 9:24 PM
He's certainly free to not roll over as long as he's willing to accept the consequences. As for not knowing, he lives a mile away. Therefore he should have "reasonably known" there was a school nearby. And it seems to me he did ask for another...

andytothemax
07-24-2011, 9:32 PM
What a ridiculous case. The part that made me feel physically sick was the following:

What we glean from Tapia, is that the simple designation of property as private does not mean it is private property within the meaning of The Gun Act. (Tapia, supra, 129 Cal.App.4th at 1167-1168.) Indeed, it would have been an incomprehensible agreement from the prosecutor's point of view because if the prosecutor felt that the property constituted private property within the meaning of section 626.9, subdivision (c), then
it would be an absolute defense and one would question why the prosecutor even filed the case, let alone continued with the trial.This is from the DA's brief on appeal. What a weasel the prosecutor was to enter a stipulation knowing full well that he was about to file a motion to gut your defense.

Private means Private. This is different from the "drinking in public" cases, which hold that a parking lot is a public place even though it's private property. C.f. the First Amendment case that extends 1A protection to private shopping centers, which are public places.

I hope you get a different result when you appeal further. Can I help?

Theseus
07-24-2011, 9:39 PM
Well, if you were in a public place within a GFSZ you were in violation of the law. Sure, it's a stupid law, but it's still the law and it seems you were plainly in violation of it. If it were me I would have taken my lumps and moved on. Then again if it were me I wouldn't have been parading around in public with an unloaded pistol.

You still fail to understand the legal issues at heart here.

I was on private property, a clear exemption under 626.9. As for living within a mile of the school, do you know how many schools there are in your area? I knew of about 3 schools in Alhambra, this one not being one of them. When conducting research for the case I discovered there are over 25 schools in Alhambra!

I will not discuss this with you if all you can't lose the attitude. I don't care what you think, in support or otherwise. Now, if you would like to discuss where you believe the law to be more clear than the several lawyers that have looked at it, by all means. To me, all I see is a bunch of the same "we want x, so how can we get b to equal x?"

Agent Orange
07-24-2011, 9:57 PM
Guess I don't understand. Guess two courts didn't either even if all those lawyers do. Guess we'll just have to wait and find out. And no, I don't know how many schools there are in my area, but I know before I open carried there I sure would learn.

Maestro Pistolero
07-24-2011, 10:05 PM
I'm sorry Theseus. I had hoped for a better result. Is there another move or is this it for you?

Munk
07-24-2011, 10:21 PM
Steps. . .

We requested a "Mistake of Fact" instruction to use as a defense to the "known or reasonably should know". We were instructed that such a defense would negate his previous ruling that it was not private property and thus, we could not. (i.e. I could not go on the stand and say "I didn't know I was in a school zone because I thought it was private property," as this would confuse the jury about his ruling the private property was not private property.)
On appeal, because we provided no evidence that there was a mistake of fact, we are not allowed to use the denial of that instruction as a means for appeal.



There is still a mistake of fact, because the prior knowledge is not predicated upon being on private property. You can be on public property carrying a firearm openly, so long as you're outside the 1000 feet, or so long as you are reasonably unaware of a school within 1000 feet of you. (being 900+ Feet away, and with no signage to tell you otherwise seems damn reasonable to me).

You CAN take the stand to say "I didn't know I was in a school zone." and that's the end of it. The "I thought it was private property" is unneccessary and not germane to your lack of knowledge, and in fact makes it look closer to you being aware that you're in a school zone but are using the exemption. Omitting the last part makes it stronger and doesn't contest the judges determination that publicly accessible means not private (which is a backwards way of looking at it to say the least).

CalBear
07-24-2011, 10:25 PM
Why did the DA or court even mention the legislative intent of the original bill (AB 645) as described by the author?

Within 1,000 feet of a school, as defined above, means any
public area or business establishment where minors are
legally permitted to conduct business which is located within
1,000 feet of any public, private elementary, vocational,
junior high, or high school.

The author's initial intent is entirely irrelevant. The original text of AB 645 can be found here, and if you read it, you'll see how much it was amended before passing. The initial intent is pointless.

http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_0601-0650/ab_645_bill_930223_introduced

It was completely different, and was quite explicit about actually applying to businesses and private property.

The bill was amended in the Senate before it passed by both houses, the analysis for which can be found here:

http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_0601-0650/ab_645_cfa_940822_193544_sen_floor

Senate Floor Amendments of 8/22/94 clarify that the exemption from the
restrictions of this bill include a "residence or place of business", as
well as private property. The amendments also address a situation where the
carrier of a weapon who believes he/she is in grave danger.

This bill would specify various situations where the possession of a
firearm is "lawful", such as at an existing shooting range at a public or
private school, if the firearm is within a place of business or residence
or on private property, if that private property is not part of school
grounds, if transported in a vehicle in accordance with state law, or if
possessed by an active or retired peace officer.

http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_645&sess=9394&house=B&author=assembly_member_allen

Unfortunately, judicial history hasn't been good on these private property rulings, and have typically categorized publicly-accessible private property as public places.

There are so many things wrong with 626.9. The 1000 ft zone is hard to definitely measure, the "reasonably should know" terminology is incredibly subjective, there's no requirement to mark school zones, and you can't take the law's text at face value, because judicial rulings mangle the meaning of basic terms like "private property."

It's another example of a law that's way too easy to violate. The school-grounds prohibition doesn't bother me so much, but the 1000-ft zone setup by 626.9 and the FGFSZ law make the right to bear darn near impossible for most Californians.

CalBear
07-24-2011, 10:28 PM
There is still a mistake of fact, because the prior knowledge is not predicated upon being on private property. You can be on public property carrying a firearm openly, so long as you're outside the 1000 feet, or so long as you are reasonably unaware of a school within 1000 feet of you. (being 900+ Feet away, and with no signage to tell you otherwise seems damn reasonable to me).

You CAN take the stand to say "I didn't know I was in a school zone." and that's the end of it. The "I thought it was private property" is unneccessary and not germane to your lack of knowledge, and in fact makes it look closer to you being aware that you're in a school zone but are using the exemption. Omitting the last part makes it stronger and doesn't contest the judges determination that publicly accessible means not private (which is a backwards way of looking at it to say the least).
Agreed. I don't see how private property is remotely related to know / reasonably should know. I've lived in my current apartment for almost a year now, and honestly, I couldn't tell you what schools there are 1.5 mile away. Elementary schools are often extremely small, and buried in residential areas.

Also it's sad how quickly they dismiss the 2nd Amendment claim. Heller mentioned "laws forbidding the carry of firearms in sensitive places such as schools." The court concludes that because of Heller, limitations on possession in sensitive places like school zones fall under "presumptive lawful." Oh and 626.9 has a number of exceptions, so let's throw that in there too.

The problem I have with that rapid dismissal is they gave no thought to the size of the zone. It's 1000 ft, not school grounds, as suggested by Heller's "in sensitive places... such as schools" language. One look at the map of SF school zones and one should see the burden imposed in a metro area. What if the school zone were, say, a mile instead? At what point does the restriction actually impose a burden and merit analysis by the court?

Obviously, I understand that school zone battles are going to be hard fought (if fought at all, in the near future), and will need to be won in higher courts. They aren't the best thing to go after, especially if the full OC ban goes through. Since there's a CCW exemption in 626.9 and FGFSZA, virtual shall issue is clearly going to be the much more realistic method of carry in CA. 1000 ft school zones are a tough battle, no matter how unjust and unlawful they are.

Slim Jim
07-24-2011, 10:54 PM
The sadest thing is that there wasnt a single person on that jury that could have simply applied some common sense and voted not guilty.

California trains its sheep well.

VegasND
07-24-2011, 11:01 PM
Sad to hear. Is there any further action to be taken, or is this the end of the line?

Theseus
07-24-2011, 11:17 PM
The sadest thing is that there wasnt a single person on that jury that could have simply applied some common sense and voted not guilty.

California trains its sheep well.

The jury was not given the private property exemption as it was counter to the ruling by the judge. As far as the jury knew, possession was completely illegal, no exemptions.

BannedinBritain
07-24-2011, 11:26 PM
The jury was not given the private property exemption as it was counter to the ruling by the judge. As far as the jury knew, possession was completely illegal, no exemptions.

My Dad was an attorney for thirty years...I sat in on many a trial...and pre-trial hearings. I always hated seeing facts excluded from the jury because somebody thought they couldn't be trusted to figure it all out themselves...it's a serious flaw in our system. :mad:

KylaGWolf
07-24-2011, 11:34 PM
Agent Orange a few things you seem to be assuming. One the school was a charter school and had very little signage.

Second Not everyone drives up and down every street in the area they live in. Although I will say this anyone that DOES open carry should do so they know what is in the area but I digress.

Third just because you may not be a fan of open carry not everyone that does so is doing so to make a statement. Some of us (before I stood down even BEFORE Gene and CGF asked was because I was seeing what was going on and didn't want to mess it up for anyone else). That being said I am a disabled female and even unloaded I can still load my gun and use it if needed faster than I can run (which I can't to begin with) if a situation goes south. Saldana suggested pepper spray or a taser. Both can be really bad choices IMO because you have to let the bad guy get too damn close before you can act and well I have seen BOTH methods fail and well I don't like what could happen next. I live in a county that getting a CCW is next to impossible unless you are very WELL connected or very wealthy or both.

And while some may not like it I see why the court ruled the way it did. Because it has been ruled that a front yard that is not fenced is considered public property. So a business that is accessible to the public like a parking lot would fall under the same thinking. Do I think it is right no. Although in all honesty this ruling could maybe open up a whole different can of worms. It could also make someone INSIDE a business lose that right to carry if they are in a school zone. Maybe not but looking at the way some of the boneheads think in this state it could go that way.

Theseus
07-25-2011, 12:04 AM
Agent Orange a few things you seem to be assuming. One the school was a charter school and had very little signage.

Second Not everyone drives up and down every street in the area they live in. Although I will say this anyone that DOES open carry should do so they know what is in the area but I digress.

Third just because you may not be a fan of open carry not everyone that does so is doing so to make a statement. Some of us (before I stood down even BEFORE Gene and CGF asked was because I was seeing what was going on and didn't want to mess it up for anyone else). That being said I am a disabled female and even unloaded I can still load my gun and use it if needed faster than I can run (which I can't to begin with) if a situation goes south. Saldana suggested pepper spray or a taser. Both can be really bad choices IMO because you have to let the bad guy get too damn close before you can act and well I have seen BOTH methods fail and well I don't like what could happen next. I live in a county that getting a CCW is next to impossible unless you are very WELL connected or very wealthy or both.

And while some may not like it I see why the court ruled the way it did. Because it has been ruled that a front yard that is not fenced is considered public property. So a business that is accessible to the public like a parking lot would fall under the same thinking. Do I think it is right no. Although in all honesty this ruling could maybe open up a whole different can of worms. It could also make someone INSIDE a business lose that right to carry if they are in a school zone. Maybe not but looking at the way some of the boneheads think in this state it could go that way.

The problem is that "within a business" is a pretty clear in meaning, whereas "private property" was an area where vagueness and grey could be introduced. The worst part being that the original bill only exempted private property, but added within a residence and within a business to clarify and provide examples of exactly what type of property was exempted, much like the example of an openly carried holster.

The property is open to the public, or a public place, but it is still private property. That is the issue. What they have done is taken the wording of one law, and substituted it into this one, contrary to the desires of the very legislature that passed the bill.

And I always took a counter position on making the schools in your area known to yourself when open carrying. The number one reason was that if I researched and made myself familiar with the schools, then that research could be found and used against me. If I remain "ignorant" I presumed I would be OK while open carrying in places I knew to be exempt, such as on private property. Even without knowing about the existence of Tapia until my case, many of us understood the logic of a sidewalk not being private property; that is different than a persons front yard, or a business parking lot.

Look, regardless of the arguments, there has been no case law that allowed a "public place = not private property" interpetation of the law. Even Tapia suggests that the reason that the sidewalk was not private property was not because of the "open to the public" but instead the easement to a public entity. My understanding of real-estate law suggested to me that an easement is almost the same as ownership (although an oversimplified definition). This is just equaling to a ex-post-facto expansion of a law by judicial expansion. . . and that is the part that is not sitting well with me.

KylaGWolf
07-25-2011, 12:11 AM
Theseus well here is the rub they still found that you should have known they were there. You know I supported you through the whole trial but I also see why they say that you were guilty even if I don't like the reason.

Maestro Pistolero
07-25-2011, 1:02 AM
Bottom line is that the question of open carry outside of the home is very much an open one and the subject of ongoing cases. If we get supreme court rulings in the near future that says open, permit-less carry is protected behavior, even if within 1000 feet from a school, then what happens to this ruling?

Maestro Pistolero
07-25-2011, 1:03 AM
GFSZ's have GOT to GO. They eviscerate the right in urban areas.

greasemonkey
07-25-2011, 1:34 AM
You're making a lot of guesses and assumptions. Maybe you should calm down a little and try to not come across as such a snarky, condescending *****. Try having a legitimate discussion, ask some questions and see how people respond to that.

Guess I don't understand. Guess two courts didn't either even if all those lawyers do. Guess we'll just have to wait and find out. And no, I don't know how many schools there are in my area, but I know before I open carried there I sure would learn.

Dark Paladin
07-25-2011, 7:13 AM
Just a thought. . . has the issue of being forced to be in public places to smoke due to the No Smoking laws been looked at? Seems to me that if you are a smoker, you are essentially forced to make yourself vulnerable to this kind of legal attack than if you are a non-smoker.

Maestro Pistolero
07-25-2011, 9:02 AM
Just a thought. . . has the issue of being forced to be in public places to smoke due to the No Smoking laws been looked at? Seems to me that if you are a smoker, you are essentially forced to make yourself vulnerable to this kind of legal attack than if you are a non-smoker.Meh, there is no right to smoke. *

* http://www.calguns.net/calgunforum/showpost.php?p=6835574&postcount=116

Uxi
07-25-2011, 9:14 AM
Meh, there is no right to smoke.

What it really comes down is do you need government to "grant" rights and tell you what you CAN do? Or is it the other way around and that government can only impede rights and tell you what you CAN'T.
I'm not a smoker, but government sticking their noses in people's business and nannying them is usually over the line. If people want to rot out their lungs, that should be their business.

Which is where we come back on topic. :D The 2nd Amendment was clearly intended to prohibit the Federal government from infringing on the natural right of self defense. That peasants had just as much a right to swords as the noble knights.

Clearly California has no such stipulation in it's own Constitution and the idea of holding the 2nd against the States would be debatable wrt the Federal Constitution. But then there's the 14th Amendment and it's selective incorporation. SCOTUS says we have the right to keep arms, but hasn't ruled on whether bearing them can be infringed... yet.

OleCuss
07-25-2011, 9:25 AM
Theseus, the result sucks. Maybe you made some mistakes, but I think the judicial system made more and greater ones.

OleCuss
07-25-2011, 9:30 AM
What it really comes down is do you need government to "grant" rights and tell you what you CAN do? Or is it the other way around and that government can only impede rights and tell you what you CAN'T.
I'm not a smoker, but government sticking their noses in people's business and nannying them is usually over the line. If people want to rot out their lungs, that should be their business.
.
.
.

As a vehement non-smoker, I agree that people have a right to smoke.

But that right to smoke goes up in, well, smoke when it infringes on the rights of others not to smoke.

Since smoking is an area issue (to a certain degree) it is different in nature from a firearm which is very restricted to a single individual until fired - and then even the bullet path is very constrained.

But the basic point is valid. If someone is not harming someone else - government should butt out.

ddestruel
07-25-2011, 9:32 AM
Guess I don't understand. Guess two courts didn't either even if all those lawyers do. Guess we'll just have to wait and find out. ..............



Two + courts didnt agree on Heller or Mcdonald either.

Part of trying to correct an overly broad law is hashing it out in court. good on Theseus for continuing to defend what he feels was an injustice........ you are allowed to do that under our system until all resouces are exhausted.

Uxi
07-25-2011, 9:38 AM
Two + courts didnt agree on Heller or Mcdonald either.

Part of trying to correct an overly broad law is hashing it out in court. good on Theseus for continuing to defend what he feels was an injustice........ you are allowed to do that under our system until all resouces are exhausted.


Indeed.


Hopefully Theseus is able/willing to challenge this further. Not sure if this is the best case or if another is more suitable, but this seems as good a vehicle as any for challenging the insanity of the Feel Good Victim Disarmament Zone (FGVDZ) aka the GSFZ. :D

Maestro Pistolero
07-25-2011, 10:59 AM
As a vehement non-smoker, I agree that people have a right to smoke.

But that right to smoke goes up in, well, smoke when it infringes on the rights of others not to smoke.

Since smoking is an area issue (to a certain degree) it is different in nature from a firearm which is very restricted to a single individual until fired - and then even the bullet path is very constrained.

But the basic point is valid. If someone is not harming someone else - government should butt out.

What relevant to this thread, i think is that, his smoking didn't 'force' him to violate the GFSZ. The right to smoke doesn't include the right to smoke while armed in a GFSZ, YET. Soon, hopefully!

cadurand
07-25-2011, 11:05 AM
How do they handle the part of 626.9 that says "..knows or reasonably should know.."?

Seems like that's the part I don't really understand. How can they prove you knew the school was there? Or should have known?

The original cops didn't even know there was a school there or that you were within 1000 of it. Didn't the find out about the school and measure it later?

FABIO GETS GOOSED!!!
07-25-2011, 11:25 AM
One the school was a charter school and had very little signage.

Second Not everyone drives up and down every street in the area they live in.

It's hard to imagine an elementary school (I believe it's a regular elementary school not a charter) more visible than this one, 700 plus students, takes up half a block on what is arguably the busiest artery through Alhambra, there must be tons of cars and buses dropping off and picking up kids each day, etc.:

http://maps.google.com/maps?q=409+s+atlantic,+alhambra,+ca&hl=en&ll=34.086522,-118.134584&spn=0.000947,0.002064&sll=34.086427,-118.134581&sspn=0.000674,0.001032&t=h&z=20&layer=c&cbll=34.086427,-118.134581&panoid=H5zS6K79WO_WjFLEtdWPwA&cbp=13,272.89,,0,2.86
http://maps.google.com/maps?q=409+s+atlantic,+alhambra,+ca&hl=en&ll=34.085251,-118.134463&spn=0.005391,0.008256&sll=34.086427,-118.134581&sspn=0.000674,0.001032&t=h&z=18 (laundromat is at southwest corner of Front and Atlantic)

sfpcservice
07-25-2011, 11:27 AM
At what point is this going to move into Federal Court?

Maestro Pistolero
07-25-2011, 11:56 AM
(laundromat is at southwest corner of Front and Atlantic)Then the school is completely obscured from view unless one ventures north across Mission and past the business (Tops Travel) on the NW corner of Mission and Atlantic. And even then, it's not obviously a school from the West side until one passes Beacon Street.

You disprove your point. I am now convinced that Theseus has more than plausible deniability on this point. Thanks, FGG.

FABIO GETS GOOSED!!!
07-25-2011, 12:08 PM
Then the school is completely obscured from view unless one ventures north across mission and past the business on the NW corner of Mission and Atlantic.

You disprove your point, FGG. I am now convinced that Theseus has entirely plausible deniability on this point. Thanks, FGG.

He lived near the movie theater at Garfield and Main, to get to the laundromat from his apartment either he went down Atlantic right past the school, or he took Mission and turned left on Atlantic and the school is clearly visible from that intersection. Or you take some circuitous, illogical, roundabout route to maintain "plausible deniability" about the school you don't know is there lol. If you live in Alhambra you'd have to be living under a rock to not drive up or down Atlantic past that school at some point! This is the weakest of all the arguments in the appeal imo, of course he knew or should have known the school was there, it's huge and right on the main street through town.

Maestro Pistolero
07-25-2011, 12:41 PM
or he took Mission and turned left on Atlantic and the school is clearly visible from that intersection.NO! It isn't!

I just walked through that intersection (via Google) at eye level, in the direction you said Theseus would be driving, repeatedly rotating to look in the direction of the school every ten feet or so, and there is NO WAY to see that there is a school from that intersection. Trees completely obscure the front of the school, the signage, the entrance, and the main buildings.

There are generic looking annex buildings just north of NW corner of Mission and Atlantic that appear from the arial view to be part of school property. But there is NO visibility of the school entrance, sign, etc. or any indication the annex buildings are part of a school property, or some other utilitarian structures.

I encourage anyone to take the same virtual walk through that intersection heading west on Mission to turn South on Atlantic, and you will see what I did. There is no indication that there may be a school.

FABIO GETS GOOSED!!!
07-25-2011, 1:11 PM
Instead of walking through google maps, how about living in Alhambra, driving up or down Atlantic or Mission repeatedly just going about your daily activities...doing laundry, driving to the 10 west onramp, whatever...the notion that this huge school is some hidden poorly marked charter school on some rarely traveled road is ridiculous. You can definitely see the school, its buildings, and its sign from the Alhambra/Mission intersection...even from google maps. There may not be a flashing neon sign clearly readable from the intersection that says "this is a school," and you may not be able to read the actual sign without magnification from that intersection (maybe you can, maybe not), but that isn't required. Nor is the question, what can you see or read from the vantage point in front of the laundromat as if you had been magically teleported there with blindfolds on. There was lots of evidence on the "knew or reasonably should have known" element and the decision sums it up correctly:

Looking at the entire testimony in the light most favorable to the judgment, there was abundant evidence from which the jury could find reasonable and credible evidence of solid value upon which to base their guilty verdict....The jury was able to examine all of the pictures submitted into evidence and could judge for themselves whether or not the school was in close proximity with Atlantic Plaza. They considered this evidence in light of the prosecutor's closing argument that given the photographs of the school, posted school signs and maps of the area, the school is prominent from many vantage points and at the very least one should know that they were in a school zone by being at Atlantic Plaza.

Maestro Pistolero
07-25-2011, 1:33 PM
Instead of walking through google maps, how about living in Alhambra, driving down Atlantic or Mission repeatedly just going about your daily activities...doing laundry, driving to the 10 west onramp, whatever...the notion that this huge school is some invisible poorly marked charter school is ridiculous. You can definitely see the school, its buildings, and its sign from the Alhambra/Mission intersection...even from google maps. Look, you're the one who offered up the Google pics as evidence that the presence of the school was obvious. Only now that it disproves your point are you disparaging of it's use as a tool to determine the visibility of the the school.

There may not be a flashing neon sign clearly readable from the intersection that says "this is a school," and you may not be able to read the sign without magnification, but that isn't required. Nor is the question, what can you see or read from the vantage point in front of the laundromat as if you had been magically teleported there with blindfolds on.
So absurdity is your new tact?

There was lots of evidence on the "knew or reasonably should have known" element and the decision sums it up correctly:WHAT EVIDENCE? He wasn't allowed to use that defense.

See the screen shots in my next post. I picked two of the most optimum vantage points from the intersection you said the school would be visible, and through which you said Theseus must have traveled and become aware of the school and the pics show that to be completely false. So back away from your 'proof' if you like.

But the real question for me, is why are you so hell-bent on Theseus being wrong here? There is more than ample doubt for him to have availed himself of the 'didn't know, nor should have known' defense. And all you can do is point to a bad decision as evidence the the court made a good decision.

Maestro Pistolero
07-25-2011, 1:42 PM
Fabio's school view from Mission and Atlantic:

http://www.christopherjhoffman.com/images/TheseusI.jpg
http://www.christopherjhoffman.com/images/TheseusII.jpg

FABIO GETS GOOSED!!!
07-25-2011, 2:06 PM
Yep, school buildings, parking lot, sign, all visible from Atlantic/Mission. The school takes up nearly the entire block...it's huge!! All those trees are on school property!! and it's basically right across the street from the laundromat. Thanks for posting the pic of the front of the school by the way

WHAT EVIDENCE? He wasn't allowed to use that defense.

It's an element of the crime. The appeal challenged (unsuccessfully) the sufficiency of the evidence used to establish that element.

OleCuss
07-25-2011, 2:19 PM
Did a little playing around with Google Maps. FGG has certainly got a point.

I've not been to that location, but so far as I can tell, it is reasonable to suppose that one could see the school sign from the intersection near where Theseus was apparently located. I doubt you could see it from right where Theseus was likely located, however.

My sympathies and such are still with Theseus, but FGG has a good point. I cannot imagine living or driving in the area without knowing the school is there.

Doesn't mean the law isn't a . . . donkey.

hawk1
07-25-2011, 2:39 PM
Fabio's school view from Mission and Atlantic:

http://www.christopherjhoffman.com/images/TheseusI.jpg
http://www.christopherjhoffman.com/images/TheseusII.jpg

Both of these pictures clearly show a school.
I'm not from anywhere around this place, I looked at the two google pictures you posted above and the first thing I see is portable buildings and a basketball hoop. Both immediately drew me to the conclusion that it was a school yard.

FABIO GETS GOOSED!!!
07-25-2011, 2:47 PM
I've been watching this saga without really commenting too much, other than to agree with snoboard's analysis of Tapia in a prior thread; the application of that opinion to this situation was fairly predictable imo. I think there were obvious risks in putting all one's eggs in one interpretation of "private property" and following an "I don't need to worry or care where a school is" approach (http://www.calguns.net/calgunforum/showpost.php?p=3248615&postcount=425).

cadurand
07-25-2011, 3:36 PM
Yeah, gotta agree with Fabio on this one. This wasn't some small school hidden in a church or office complex.

I'd never looked at the pictures before. It's pretty hard to defend not knowing that school was there.

E Pluribus Unum
07-25-2011, 3:53 PM
It's pretty hard to defend not knowing that school was there.

I would argue the point is moot.

Mr. Theseus has a 2nd amendment right to bear a firearm on public property even if that property is next to a school. Because the court cases are not yet in place to protect him, doing so would be stupid. Because he played a stupid game, he won a stupid prize of being a prohibited person until it all gets wrapped up.

Ultimately, I think after many years of litigation, the GFSZ crap will either go away completely, or be severely gutted.

In the end, Theseus is right.... but even if his case is victorious, he did not "win" because he spent many years and many thousands without his guns.

It makes me wonder if the federal GFSZ law could be contested in a more friendly district.

kcbrown
07-25-2011, 3:56 PM
This is one of the reasons I refuse to OC -- because I can never know that I am legally carrying in any given location.

And here in California, if the law can in any way be vaguely interpreted against you, it will. The judiciary here in California will go through whatever gyrations it must to ensure that. This case is proof.


It's why you really need the 2A sledgehammer in order to win. Which is to say, if you can't mount a solid 2A defense and take it all the way to SCOTUS (and win there) if necessary, then your case is dead. The California judiciary is going to take every possible opportunity to minimize your RKBA and hand you a loss. And that even includes the 9th Circuit.

Uxi
07-25-2011, 4:02 PM
I can't tell that's a school from those screen shots. I've been in Alhambra several times, but don't know it well enough to know there's a school there. I see no signs, though I see the trees. From that vantage point, it's not clear to me that's a school at all. I was expecting to see some yellow "school zone" or student crossing signs or at least a 25mph sign.


Ultimately, I think after many years of litigation, the GFSZ crap will either go away completely, or be severely gutted.


We need a loss at all these levels to get to SCOTUS before this sort of inane law can get tossed on Constitutional grounds. Maybe this is the sort of case that needs to fight that, but on second amendment grounds instead of "reasonably know" grounds.


In the end, Theseus is right.... but even if his case is victorious, he did not "win" because he spent many years and many thousands without his guns.


Does he have the will and means to care that far, though? IIRC he moved to Hong Kong...


It makes me wonder if the federal GFSZ law could be contested in a more friendly district.

Pending a good 2012 election cycle, and a decent supporter of the 2nd Amendment in the White House, we can hope the federal law would go away on it's own. That doesn't help those of us in California, though.

FABIO GETS GOOSED!!!
07-25-2011, 4:12 PM
I was expecting to see some yellow "school zone" or student crossing signs or at least a 25mph sign.

You can see the "Speed Limit 25 when children are present" in both pics from the intersection, with "school" in neon yellow at the top, on the first light post past the signal on northbound Atlantic, next to the car dealer.

Uxi
07-25-2011, 4:15 PM
You can see the "Speed Limit 25 when children are present" in both pics from the intersection, with "school" in neon yellow at the top, on the first light post past the signal on northbound Atlantic, next to the car dealer.

Ah on the right. Now that you pointed it out, I did notice the find Waldo. Moral of the story is what we should already know: that the GFSZ are a mine field that blatantly infringe on the right to bear arms and they need to be challenged on those grounds.

FABIO GETS GOOSED!!!
07-25-2011, 4:33 PM
Heller isn't too helpful on GFSZ:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

26 We identify these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.

Federal law treats school grounds and the 1000 foot area around them as constituting a single "school zone":

(25) The term "school zone" means--
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

The federal law criminalizes possession of firearms both in or on school grounds and within 1000 feet by using this definition; the supreme court was certainly aware of this:

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

In short the federal law treats school grounds and the 1000 foot area as one and the same for purposes of the law regulating possession at schools and there is nothing in Heller to suggest that the supreme court has any problem with this.

Uxi
07-25-2011, 4:34 PM
Right. Heller just addressed "keep." We need another case to address "bear."

With the Victim Disarmament Zones such as they are now, though, you simply can't carry a weapon in a populated area without a CCW. If they choose to mandate Shall Issue, that satisfies "bear" but right now everyone in a CCW-unfriendly environment has no right to bear arms, or by extension, self-defense.

E Pluribus Unum
07-25-2011, 4:37 PM
Pending a good 2012 election cycle, and a decent supporter of the 2nd Amendment in the White House, we can hope the federal law would go away on it's own. That doesn't help those of us in California, though.

I think any leeway will be gained in the courts, not the legislature. No matter who wins the presidency, gun issues are cryptonite.

I think right now, the supreme court is as good as it's been in 20 years.

snobord99
07-25-2011, 5:52 PM
Ok, I live in Alhambra and have driven along Atlantic past that school probably over one hundred times. I will tell you that I, for one, never knew a school was there until it was pointed out by this case. I know I have noticed a school there as I drove by, but if you gave me a map and told me to circle where schools are in Alhambra, I would not have circled it.

That said, despite my not actually knowing a school was there, do I think he should have reasonably known the school was there? Yes, I do. He, like I, live in Alhambra (in fact, I believe he lived closer to the school than I do). I would find it hard to believe that he never noticed that there was a school there (the school's sign along Atlantic is not small). With that being the case, and despite my lack of knowledge about the school being there, I think it's pretty reasonable to put the duty on the OCer to know where schools are (under the current statutory scheme...let's not open up the Constitutional argument here). Especially considering that this school has such a large sign along such a busy street.

Quser.619
07-25-2011, 6:12 PM
Funny if the school was so apparently seen why exactly did the officers not know the location was near a school again?

Uxi
07-25-2011, 6:24 PM
Funny if the school was so apparently seen why exactly did the officers not know the location was near a school again?

Speaking of which, it said that Barney Fife went back later to measure. I'm curious where exactly his endpoints were and if he knew where to place the school end or if it was arbitrary.

OleCuss
07-25-2011, 6:39 PM
Funny if the school was so apparently seen why exactly did the officers not know the location was near a school again?

I don't like the way the court ruled. I don't like the jury verdict. I don't like the law.

There's a lot I don't like about this. But I think that further appeal won't work too well. I don't think it is the best case for challenging the GFSZ's.

The idea that this kind of law could exist and this kind of case could result in conviction despite the 1A is revolting.

But under current jurisprudence I guess it isn't all that surprising.

bigcalidave
07-25-2011, 7:18 PM
it's pretty sad this is how it turned out so far... Hang tough!

newbee1111
07-25-2011, 7:27 PM
Could this case be used to show that UOC isn't really a viable option and that the combination of the CA GFSZ and California's May issue status puts California in violation of McDonald?

OleCuss
07-25-2011, 7:59 PM
I don't think even school property should be a firm restricted area.

Licensed carry everywhere. Unlicensed carry restricted to public access areas during school hours and unrestricted when there are no children present and engaged in school activities.

Window_Seat
07-25-2011, 8:03 PM
Could this case be used to show that UOC isn't really a viable option and that the combination of the CA GFSZ and California's May issue status puts California in violation of McDonald?

Even if this were to be the case, it's something that is to be moot point if when CA becomes a shall issue or virtual shall issue state.

Erik.

OleCuss
07-25-2011, 8:09 PM
Quick question:

Could the current California GFSZ pass even a "rational basis" argument for enforcement when children are not present? I'm not sure how anyone could even argue that a GFSZ improves safety when a GFSZ is deserted by those whom it was supposedly intended to protect?

And I know, the scrutiny level question should not be the one which obtains. But I'm doing a "what if".

Uxi
07-25-2011, 8:26 PM
Even if this were to be the case, it's something that is to be moot point if when CA becomes a shall issue or virtual shall issue state.


We're still nowhere close to that yet. Even if every county went to Shall Issue, it would still be prohibitively expensive for many/most. Especially when UOC is essentially free.

hoffmang
07-25-2011, 8:32 PM
The Ninth Circuit is not the place to challenge school zones.

FGG jumps to a conclusion that a school zone is a school. On this case I generally agree with him, but on this point I think he's making it up. However, here in CA-9, he's correct for the types of results we could possibly get.

Other Circuits, schools mean schools - not 1000' feet from a school which includes parking lots of non school places for example.

-Gene

newbee1111
07-25-2011, 8:42 PM
Even if this were to be the case, it's something that is to be moot point if when CA becomes a shall issue or virtual shall issue state.

Erik.

Well my question was if this could help tip "may" to "shall". California defends may issue by stating that open carry is legal when its not really in most urbanized areas. There really isn't any legal avenue for someone to carry a loaded or unloaded gun in their unfenced front yard if they happen to live in a GFSZ and they live in a county that only issues CCWs to movie stars and big campaign donors. That's like one closed front door from violating Heller.

newbee1111
07-25-2011, 8:48 PM
The Ninth Circuit is not the place to challenge school zones.

FGG jumps to a conclusion that a school zone is a school. On this case I generally agree with him, but on this point I think he's making it up. However, here in CA-9, he's correct for the types of results we could possibly get.

Other Circuits, schools mean schools - not 1000' feet from a school which includes parking lots of non school places for example.

-Gene


So the route to attacking the CA GFSZ 1000 foot rule is to challenge the federal one outside of california and then once the federal one is reduced to "on school property" then to attack the CA one with that as a precedent? The war is about reducing the scope of sensitive areas then? Wow, its a good some some dumb *** got all parks declared as sensitive areas then.

hoffmang
07-25-2011, 8:51 PM
So the route to attacking the CA GFSZ 1000 foot rule is to challenge the federal one outside of california and then once the federal one is reduced to "on school property" then to attack the CA one with that as a precedent? The war is about reducing the scope of sensitive areas then? Wow, its a good some some dumb *** got all parks declared as sensitive areas then.

Yep. Fight where the enemy is weak is very often the best strategy.

-Gene

Fyathyrio
07-25-2011, 9:04 PM
Unfortunately, the only warning that there's a school there from the road is a school zone sign well within the 1000' boundary...it's almost at the entrance to the parking lot. How is random stranger in town supposed to know he's crossed that magic line? This case stinks like rotten meat from all angles, I'm sorry for what happened to Theseus, but I'd really hate to see this one go to far up the chain I think.

snobord99
07-26-2011, 2:56 AM
Funny if the school was so apparently seen why exactly did the officers not know the location was near a school again?

I'm pretty sure this is not true and the assumption comes from the fact that they didn't arrest him on the spot. I'm quite sure the reason he wasn't arrested at the scene wasn't because they didn't know the school was within 1,000 ft of the school zone; rather, they didn't know there was a law against open carry within 1,000 ft of a school.

Most patrol officers know which alley is the best shortcut to get from Albertson's to Vons. There are very few that wouldn't know schools in their area they patrol and I have little doubt these ones knew too. In this particular case, if you know the school is there, it's pretty obvious that it's less than 1,000 ft away.

Theseus
07-26-2011, 5:43 AM
Firstly I can say that, to my recollection, I never went down that stretch of road where the school is before, during or after the trial other than the two times I was asked to to collect evidence by my lawyer. I never needed to. I tried playing my interactions and trying to recall a time I had ever, and I can't.

As for why I believe I never noticed the school hen going west on Mission to the laundry mat...It never mattered, especially when driving, because it was always properly transported between exempt locations. Add to that the left turn lane light is at the end of the through traffic, so I cant recall a time that I ever sat at the intersection long enough to look around for a school. I dont consider it a reasonable burden for an OCer or anyone to be required to learn location, presence, ground property lines of over 20 schools in a city just because they may live close...but regardless of the "know or should know," the public place enforcement of GFSZ is unacceptable and the true issue at the heart of the case.

Rest assured that the case will only move forward if it is useful for the cause. If not, then I was done at the end of trial.

But I can say with Snowboard, the officer say they didn't know about 626.9. It was a watch officer or something days later that discovered it.

But, in truth, the probation was fine, it was the 10 year prohibition for a victim less non-violent misdemeanor that chafes my ***.

Sent from my Moto Defy using Tapatalk

OleCuss
07-26-2011, 6:49 AM
Right, the law is ridiculous. I think this has been adequately demonstrated.

Probably not worth pursuing further, however.

Now my hope is that Lex Arma and his client can kill off the 10 year ban and a lot of other stuff will come back around to kill off the GFSZ.

E Pluribus Unum
07-26-2011, 8:42 AM
Firstly I can say that, to my recollection, I never went down that stretch of road where the school is before, during or after the trial other than the two times I was asked to to collect evidence by my lawyer. I never needed to. I tried playing my interactions and trying to recall a time I had ever, and I can't.

As for why I believe I never noticed the school hen going west on Mission to the laundry mat...It never mattered, especially when driving, because it was always properly transported between exempt locations. Add to that the left turn lane light is at the end of the through traffic, so I cant recall a time that I ever sat at the intersection long enough to look around for a school. I dont consider it a reasonable burden for an OCer or anyone to be required to learn location, presence, ground property lines of over 20 schools in a city just because they may live close...but regardless of the "know or should know," the public place enforcement of GFSZ is unacceptable and the true issue at the heart of the case.

Rest assured that the case will only move forward if it is useful for the cause. If not, then I was done at the end of trial.

But I can say with Snowboard, the officer say they didn't know about 626.9. It was a watch officer or something days later that discovered it.

But, in truth, the probation was fine, it was the 10 year prohibition for a victim less non-violent misdemeanor that chafes my ***.


I feel for you my man... I think the 10 year prohibition is a travesty. That being said, you will never convince anyone that you did know that school was there. You live near the school. Every school I live next to is a pain in my rear at 7:30 and 2:30. Right or wrong, that is what it is.

Now... if a police officer does not know it's illegal, how should you be expected to know? THAT is a more compelling argument to me.

Wherryj
07-26-2011, 9:16 AM
He lived near the movie theater at Garfield and Main, to get to the laundromat from his apartment either he went down Atlantic right past the school, or he took Mission and turned left on Atlantic and the school is clearly visible from that intersection. Or you take some circuitous, illogical, roundabout route to maintain "plausible deniability" about the school you don't know is there lol. If you live in Alhambra you'd have to be living under a rock to not drive up or down Atlantic past that school at some point! This is the weakest of all the arguments in the appeal imo, of course he knew or should have known the school was there, it's huge and right on the main street through town.

Actually it isn't really unreasonable to believe that someone could drive past a school repeatedly and not "notice" it. I didn't notice the schools in my current city until my oldest was reaching kindergarten age. I started to pay attention to where the schools are and realized that I had been driving past several that I had never really paid attention to.

Strangely, I'm mot interested in not hitting other cars/pedestrians, etc. while driving...I'm not usually memorizing building architecture and function.

E Pluribus Unum
07-26-2011, 9:35 AM
Actually it isn't really unreasonable to believe that someone could drive past a school repeatedly and not "notice" it. I didn't notice the schools in my current city until my oldest was reaching kindergarten age. I started to pay attention to where the schools are and realized that I had been driving past several that I had never really paid attention to.

Strangely, I'm mot interested in not hitting other cars/pedestrians, etc. while driving...I'm not usually memorizing building architecture and function.

If you are going to openly carry a gun, you better know where you can legally do so. You better know about the GFSZ act, and you better know where the schools near your home are located. I understand that what happened to Theseus is tragic, but to parade him around as a victim is just not congruent with the truth.

He knew what he was doing when he did it. if you want to tout someone as a victim of circumstance, you show me someone who was carrying in a rural place that just happened to be incorporated. Show me a man that was traveling on the freeway in a foreign city that just happened to be next to a school. There are 101 scenarios where a law-abiding citizen could be the victim of circumstance; Theseus was not.

FABIO GETS GOOSED!!!
07-26-2011, 10:21 AM
Actually it isn't really unreasonable to believe that someone could drive past a school repeatedly and not "notice" it.

Not this school, unless you are driving with blinders on. It's right in your face as you drive up or down Atlantic. "Northrup School" is painted in enormous letters on the front of the building, which is right off the street. You can't miss it the same way you can't miss other big, well-identified schools on main streets in the area, like Blair High school at Glenarm and Marengo in Pasadena or South Pasadena High School on Fremont, or San Marino Middle School and San Marino High School on Huntington, or Carver Elementary school at Huntington and San Gabriel. Drive near any one of these schools around 2-3 in the afternoon on a school day (when theseus's incident happened) and not only will the physical structure of the school be clearly visible, there will be students all over, a line of cars picking kids up (esp. at the elementary and middle schools), crossing guards with neon vests, speed limit 25 when children are present signs, and on and on.

For kicks I drove west on Mission this morning from Garfield and turned left on Atlantic...from the left turn lane you can unmistakably see the basketball nets on the school playground, there are about a dozen of them, and the portable classrooms. All of these and the other indicators in the google map pics appear much closer in real life. The 25 when children are present sped limit sign is right there, you can see it from the left turn lane. When you are taking the return route, going north on atlantic waiting to turn right at mission, you can read the speed limit sign with the neon "SCHOOL"...clearly, without magnification...as well as "Northrup School" in white letters set off a blue background on the school sign a little ways up street.

Anyway, no reason to belabor this any longer, the jurors unanimously decided against theseus on this element and there was plenty of evidence to support their decision.

Maestro Pistolero
07-26-2011, 10:53 AM
Fabio, for what it's worth, I believe that the school buildings are more in-your-face in person than they appear on the google pics. They use a very wide lens.

I admit part of my vigor in wanting to defend Theseus is due to my disdain for the GFSZs in the first place.

I remain convinced that it's not inconceivable, but admit that it's improbable that Theseus didn't know about the school. But I maintain that there is sufficient doubt to have allowed him that defense.

Bottom line it's a despicable, misguided, and I hope soon, stricken law.

Regards,
MP

Whiskey_Sauer
07-26-2011, 11:05 AM
Theseus, irrespective of my feelings about OC, I'm truly sorry to hear about this result. It's an absurd application of the law, but I'm not surprised.

What I am surprised about is that you did not put on a defense? There seems to have been two main issues at trial: (1) whether the parking lot constituted private place for purposes of 626.9, and (2) whether you knew or reasonably should have known that you were in a school zone. It seems to me, further, that when you lost the private place argument in an in limine motion, your only shot to win at trial (and not on appeal) was to challenge the prosecution's evidence on the second issue. If you had testified, and were credible, sincere, and most importantly, likeable, you could have raised reasonable doubt on the issue. But in the absence of any evidence to the contrary, the jury could only go with the People's evidence on the "knew or should have known" issue.

There's probably so much you can't say in public in response to this, so I'll understand. If you want to send me a PM and $1, we'll call it attorney-client privilege.

FABIO GETS GOOSED!!!
07-26-2011, 11:29 AM
What I am surprised about is that you did not put on a defense? There seems to have been two main issues at trial: (1) whether the parking lot constituted private place for purposes of 626.9, and (2) whether you knew or reasonably should have known that you were in a school zone. It seems to me, further, that when you lost the private place argument in an in limine motion, your only shot to win at trial (and not on appeal) was to challenge the prosecution's evidence on the second issue. If you had testified, and were credible, sincere, and most importantly, likeable, you could have raised reasonable doubt on the issue. But in the absence of any evidence to the contrary, the jury could only go with the People's evidence on the "knew or should have known" issue.

I was wondering about this too in light of the last paragraph of the appellate division's decision. I would imagine that if he testified he would have been cross-examined about what steps he may have taken to ascertain whether he was in a school zone, and if the response was anything like "I don't need to worry or care where a school is" (http://www.calguns.net/calgunforum/showpost.php?p=3248615&postcount=425) that would not have gone over so well.

FABIO GETS GOOSED!!!
07-26-2011, 11:42 AM
I remain convinced that it's not inconceivable, but admit that it's improbable that Theseus didn't know about the school.

I believe that he did not actually know the school was there and that he can't recall ever driving that stretch of Atlantic. It's the "should have known" that's the problem. The conviction was the result of choices, one of which was to deliberately not worry or care about school locations. The strategy was risky and the outcome is not surprising. Anyway from the very beginning I've thought that Heller was a good case for carry and we will have a better idea how this will play out soon.

curtisfong
07-26-2011, 12:15 PM
I believe that he did not actually know the school was there and that he can't recall ever driving that stretch of Atlantic. It's the "should have known" that's the problem. The conviction was the result of choices, one of which was to deliberately not worry or care about school locations. The strategy was risky and the outcome is not surprising. Anyway from the very beginning I've thought that Heller was a good case for carry and we will have a better idea how this will play out soon.

Sorry Theseus, but FGG nails it right here, IMO.

Obviously, I am disappointed that your case turned out this way, but until we get all these crazy laws fixed, cases like this will continue.

newbee1111
07-26-2011, 2:48 PM
I think it also depends a lot on what type of school it is. Its hard to argue to that someone shouldn't reasonably know that there is a large high school just a block away. But for a small unmarked in a church backroom that's a very reasonable defense.

I also wonder what the GFSZ law would look like after some level of scrutiny is applied to it. Lets say that you go with the assumption that the state has a reasonable interest in keeping guns off school campuses, you know, to protect the children. Why should the GFSZ law apply after dark when there are no kids around? How about during summer when school isn't in session? Why does the zone extend to the surrounding area during school time when kids are supposed to be in class?

I could see an argument that the zone should apply just before and after school when the kids are congregated around the campus, kind of like no right turn on red when kids are present.

Munk
07-26-2011, 9:31 PM
I think it also depends a lot on what type of school it is. Its hard to argue to that someone shouldn't reasonably know that there is a large high school just a block away. But for a small unmarked in a church backroom that's a very reasonable defense.

I also wonder what the GFSZ law would look like after some level of scrutiny is applied to it. Lets say that you go with the assumption that the state has a reasonable interest in keeping guns off school campuses, you know, to protect the children. Why should the GFSZ law apply after dark when there are no kids around? How about during summer when school isn't in session? Why does the zone extend to the surrounding area during school time when kids are supposed to be in class?

I could see an argument that the zone should apply just before and after school when the kids are congregated around the campus, kind of like no right turn on red when kids are present.

Scrutiny will kill the law once it reaches the curb. The school itself may be a sensitive area, maybe even as far as the curb, but beyond the school is public and private property that has no business being controlled.

Uxi
07-27-2011, 8:27 AM
Scrutiny will kill the law once it reaches the curb. The school itself may be a sensitive area, maybe even as far as the curb, but beyond the school is public and private property that has no business being controlled.

Right. I would argue armed teachers and administrators would make campuses safer, but could live with the school grounds themselves being offlimits (barring Superintendent permission, etc as per the current law), but extending that beyond is blatantly infringing.

AyatollahGondola
07-27-2011, 4:23 PM
Unfortunately, judicial history hasn't been good on these private property rulings, and have typically categorized publicly-accessible private property as public places.

Yes, the common areas of private property were thrown in my face once when I was armed and on the business property I was leasing. In that instance, there was a previously used common area that was closed after I leased it. But some cop incognito came lurking around there looking like a common thief casing the place, and after he ID'd himself during our encounter, he noticed my handgun (semi-concealed). The discussion with him, several other cops who arrived afterwards, and the whomever else they were in communication with was that as long as it was accessible as a common area, and without a no tresspassing sign, it was common area enough to be public.

Theseus, I'm very sorry for this, and disappointed in the ruling of course. Legal manuevering is a chess game with changeable rules. It's hard to win, and unfortunately you're often forced to play.

And yes, there are schools springing up everywhere. Charters, little public special schools and god only knows what else on the horizon. I slung my rifle on my back and hiked ten miles to the shooting range last weekend again. Fortunately there is still a route that misses the school zones, but who knows how much longer that will be. There are signs of new housing tracts all over. Last time I did the same and ended up on the asphalt for it, one of the SO's asked why I didn't take another route that wouldn't take me in such a highly trafficked area where people would panic, I told him plainly that all the other feasible routes were prohibitive because of the school zones.

Theseus
07-27-2011, 5:01 PM
While I can understand your issues, it seems to me that having informed myself of the school would have made little to no difference. At the beginning, we believed that they might pull out all the stops like confiscating computers and such to try and find evidence in support of the "knew" element, and the major reason I chose not to inform myself. - Thus preventing a slam-dunk "knew". We didn't know the burden of "reasonable should know" would be so ridiculous.

If I passed schools that I noticed, I would note and avoid, but I didn't go out of my way to "inform" myself of schools. But, I understand how so many of you are hyper-vigilant and notice all in the world around you, but I focus more on not causing accidents and observing traffic laws, not seeing if there is a school around every single corner of my city or its surrounding cities.

Even if I had, I would have still open carried as was obviously private property. I had carried there dozens of times, even to the comfort of the attendant. Normally I did laundry in the later evening hours (8 - 10), but I had been unemployed for a period and chose to do laundry during the day, to spend more time with my family at night.

As for the reason I didn't testify, there were some compelling reasons why, but ultimately we didn't see that it would have done us any good. We had already established by the officers testimony that: (paraphrased)


if you didn't know the school was there, you would not know it. (from the location)
there were no less than 6 ways to have arrived at the parking lot without having passed by the school or the related 'school' signs.
Although a building was visible at the time the photographs were taken, the building was not there at the time of the incident.
There was no evidence presented on how I got to the school.

Further, the school was surrounded and enclosed on 3 sides, even on the block that this school is on. To the north, a shopping center with a 7-eleven and Auto Zone. To the south, a printing business, sporting goods store and a convenience store. To the west, an apartment complex. The signs indicating the presence of the school are ONLY located ON the block where the school resides. Coming from Mission, even looking at the school, the only obvious sign is covered or obscured by a tree. Otherwise you see some temporary buildings, and a small parking lot that, from first look, is simply additional parking for the small strip mall just to the south. Just understand that, you are looking at this with a "I know the school is there" mindset. When looking for the signs, you will see it. I wasn't looking.

We felt that, with this combined, there was reasonable enough doubt to suggest that, although I might have known, there was just too much of an "if" situation to reach an "abiding conviction". The only argument I wish we had really made more strongly was that the parking lot was also "within a business". Although we argued that I was within a business, we didn't strongly enough expand it to the parking lot. I believe that might have not gone over too well, but that it might have provided enough food for thought to get another result.

kcbrown
07-27-2011, 5:10 PM
We felt that, with this combined, there was reasonable enough doubt to suggest that, although I might have known, there was just too much of an "if" situation to reach an "abiding conviction".

This is California. There is no such thing as "reasonable doubt" when it comes to cases involving guns.

As, alas, you seem to have discovered on your own. :(

OleCuss
07-27-2011, 6:08 PM
What kcbrown said.

I, personally, think you did nothing wrong. I'd happily go along with the idea that you didn't even violate the law.

But it's not worth pursuing any farther. California does a lot of nutty things and the law doesn't matter quite as much as what you can push a jury and a court to do.

So the police initially on the scene didn't see that your presence so near the school was a violation of law. That doesn't mean they can't twist things and get you convicted anyway.

It's stupid and unconscionable that they can violate your rights this way, but so far they still can.

camsoup
07-27-2011, 9:26 PM
If you are going to openly carry a gun, you better know where you can legally do so. You better know about the GFSZ act, and you better know where the schools near your home are located. I understand that what happened to Theseus is tragic, but to parade him around as a victim is just not congruent with the truth.

He knew what he was doing when he did it. if you want to tout someone as a victim of circumstance, you show me someone who was carrying in a rural place that just happened to be incorporated. Show me a man that was traveling on the freeway in a foreign city that just happened to be next to a school. There are 101 scenarios where a law-abiding citizen could be the victim of circumstance; Theseus was not.

If you are going to openly carry a gun, you better know where you can legally do so. You better know about CA penal code 12031, and you better know where the incorporated areas near your home are located.

Why is needing to know where EVERY school in your town is any more important than needing to know ALL of the incorporated cities in CA when it comes to UOC of firearms in this state?

It isn't any different, both are places where it is not legal to carry loaded and/or carry at all. PC 626.9 even gives us the "reasonably should know...." clause, why on earth would you retain to memory every school you know about?

Crazed_SS
07-27-2011, 11:23 PM
The only argument I wish we had really made more strongly was that the parking lot was also "within a business". Although we argued that I was within a business, we didn't strongly enough expand it to the parking lot. I believe that might have not gone over too well, but that it might have provided enough food for thought to get another result.

Dont think that would have helped. Parking lots might be private property, but people stroll through and access them all the time. Ever notice car clubs taking over supermarket parking lots and stuff like that. They're pretty public places.

Theseus
07-28-2011, 12:41 AM
But the courts very well understand that "within a business", something that is clearly exempt within 626.9. Further, businesses are open to the "general use" of the public as they are saying the reason for the parking lot not being private property. This is why the reason to determine that the legislature didn't mean to protect private property doesn't hold water. Had they wanted places "open to the public" to be enforced, why did they allow "within a business"?

E Pluribus Unum
07-28-2011, 1:48 AM
If you are going to openly carry a gun, you better know where you can legally do so. You better know about CA penal code 12031, and you better know where the incorporated areas near your home are located.

Why is needing to know where EVERY school in your town is any more important than needing to know ALL of the incorporated cities in CA when it comes to UOC of firearms in this state?

It isn't any different, both are places where it is not legal to carry loaded and/or carry at all. PC 626.9 even gives us the "reasonably should know...." clause, why on earth would you retain to memory every school you know about?

UOC is legal in incorporated areas (not within 1000 feet of a school and other specific areas like post offices, et cetera). Unincorporated areas applies to Loaded Open Carry.

camsoup
07-28-2011, 7:42 PM
UOC is legal in incorporated areas (not within 1000 feet of a school and other specific areas like post offices, et cetera). Unincorporated areas applies to Loaded Open Carry.

My point was that if one was in unincorporated territory, while LOC and entered an area of incorporated territory while loaded you would be in violation of the law. That is not any different than carrying within 1000' of a school while UOC.

Yet you make it sound like to UOC you NEED to know where every school is and be damned sure you staying out of those zones. That is not any different than LOC and NEEDING to know where incorporated areas are to prevent yourself from breaking the law.

E Pluribus Unum
07-28-2011, 10:35 PM
My point was that if one was in unincorporated territory, while LOC and entered an area of incorporated territory while loaded you would be in violation of the law. That is not any different than carrying within 1000' of a school while UOC.

Yet you make it sound like to UOC you NEED to know where every school is and be damned sure you staying out of those zones. That is not any different than LOC and NEEDING to know where incorporated areas are to prevent yourself from breaking the law.

I did not say you had to know where every school was at.

This is by his HOME. If you are going to open carry to and from your home, you better know where the schools near your home are at the very least.

As far as knowing where incorporated areas are is concerned, it is doubly important because there is no "reasonably should have known" verbiage in the law. It is very black and white. If you are Loaded Open Carrying, you better know where the incorporated areas are, unless you like jail. Are you seriously suggesting that one need not know where these areas are to LOC?

Theseus
07-29-2011, 1:32 AM
I did not say you had to know where every school was at.

This is by his HOME. If you are going to open carry to and from your home, you better know where the schools near your home are at the very least.

As far as knowing where incorporated areas are is concerned, it is doubly important because there is no "reasonably should have known" verbiage in the law. It is very black and white. If you are Loaded Open Carrying, you better know where the incorporated areas are, unless you like jail. Are you seriously suggesting that one need not know where these areas are to LOC?

But how close to a home and, why should it matter if at all times I ensured that, with my understanding of the law, I was always under one of the outlined exemptions for private property, within a business, residence, or in legal transport? Even more than that, I have always been a notoriously poor judge of distance. Even in the Army I couldn't tell much difference between the 200 and 300 yard targets other than that I hit them when shooting.

NeuTag
07-29-2011, 3:49 AM
But how close to a home and, why should it matter if at all times I ensured that, with my understanding of the law, I was always under one of the outlined exemptions for private property, within a business, residence, or in legal transport? Even more than that, I have always been a notoriously poor judge of distance. Even in the Army I couldn't tell much difference between the 200 and 300 yard targets other than that I hit them when shooting.

You are an innocent individual caught up in what newspapers said are 'the new felons' according to the Wall street journal back in the 1980s when the democratic party said lets just demonize the laws and the innocent will lawyer up and be free. I never owned a pistol in 30 years, but any of my guns would send us all to jail after the Vallejo bust of a toy cannon run on gunsite ammo aka miners powder for lamps.

I cringe as you could be me. In another world legally carrying...only the 57 DA words change to protect the innocent DA/cops and to get a record of busts.
This idiocy has gone so far as a cop was onsite of a crime scene with a rifle instead of a shotgun....that cop could have killed an innocent individual miles away...that is why shotguns only in the cities. Example of good police work and bad bring of a long range gun to a short range shot situation... (http://www.youtube.com/watch?v=27r_jEfjC8U&feature=related) In 1989, a SJPD officer kill another officer using a shotgun with buckshot...it was a rick-o-shay that killed the other officer....The Filmer on scene was relieved of the video tape against the 1st amendment. It was a bad situation that got worst with the rights of the witnesses being lost.

edited to an earlier version of another cam that show a police office with a long range weapon in a shortrange situation.

hawk1
07-29-2011, 8:23 AM
But how close to a home and, why should it matter if at all times I ensured that, with my understanding of the law, I was always under one of the outlined exemptions for private property, within a business, residence, or in legal transport? Even more than that, I have always been a notoriously poor judge of distance. Even in the Army I couldn't tell much difference between the 200 and 300 yard targets other than that I hit them when shooting.

It matters when your understanding of the law differs from theirs.

Uxi
07-29-2011, 8:38 AM
It shouldn't matter. But unfortunately it does. De facto, but arguably not de jure. That's your court cases are about. Are you still going to appeal further or is it done?

E Pluribus Unum
07-29-2011, 9:29 AM
But how close to a home and, why should it matter if at all times I ensured that, with my understanding of the law, I was always under one of the outlined exemptions for private property, within a business, residence, or in legal transport? Even more than that, I have always been a notoriously poor judge of distance. Even in the Army I couldn't tell much difference between the 200 and 300 yard targets other than that I hit them when shooting.

Even if one is compelled to believe that you qualified under the private property exemption, you just didn't teleport from your home; you walked there, and when you did so, you did so on public property.

When a business is open to the public, some of the private property rights are suspended. Walmart lost a case against the street vendors that plague their parking lots because though it is private property, when it is open to the public, it becomes quasi-public property. They were unable to remove the vendors from the property.

Let's face facts: You knew what you were doing. You were open carrying not to defend yourself from a possible threat, you were open carrying in order to exercise your right to do so. It is my suggestion that if one feels compelled to do that, he should know where the schools are and if he's bad at judging distance from those schools, he should measure. For you to argue otherwise suggests that you have not learned anything from the ordeal.

If given a do-over, would you do it again? If the answer is "no", then I guess my advise is sound... ;)

chris12
07-29-2011, 10:25 AM
Even if one is compelled to believe that you qualified under the private property exemption, you just didn't teleport from your home; you walked there, and when you did so, you did so on public property.
I'm pretty sure he drove there with it locked in his vehicle.

Let's face facts: You knew what you were doing. You were open carrying not to defend yourself from a possible threat, you were open carrying in order to exercise your right to do so.
Are you suggesting he would not have used the gun to defend himself? In any case, how would you know his motivations?

E Pluribus Unum
08-01-2011, 4:45 AM
I'm pretty sure he drove there with it locked in his vehicle.

My post still stands; private property becomes quasi-public when it's open to the public for business. We don't have the same private property rights at a business that we do at a home.


Are you suggesting he would not have used the gun to defend himself? In any case, how would you know his motivations?

I am sure he would have had he been placed in that situation. If he were that worried about someone attacking him, he'd be better advised to loaded concealed carry and worry about the double misdemeanor than to open carry within 1000 feet of a school. At least if it were concealed, the only time it would become an issue is if he were actually attacked.

I'm sorry, but seldom does someone open carry an unloaded firearm for the off chance he will need it. I used to open carry a lot, and it was more about a statement. It was expressive in nature; in reality I was exercising my first amendment right as much as the second. I believe that if Mr. Theseus is honest, he too will admit it was expressive in nature.

Theseus
08-01-2011, 7:00 AM
My post still stands; private property becomes quasi-public when it's open to the public for business. We don't have the same private property rights at a business that we do at a home.



I am sure he would have had he been placed in that situation. If he were that worried about someone attacking him, he'd be better advised to loaded concealed carry and worry about the double misdemeanor than to open carry within 1000 feet of a school. At least if it were concealed, the only time it would become an issue is if he were actually attacked.

I'm sorry, but seldom does someone open carry an unloaded firearm for the off chance he will need it. I used to open carry a lot, and it was more about a statement. It was expressive in nature; in reality I was exercising my first amendment right as much as the second. I believe that if Mr. Theseus is honest, he too will admit it was expressive in nature.

I am done trying to justify my actions with you. I have learned something, most of all exactly how much the system is flawed. I believed that there was some honesty left in it, but I don't anymore.

Uxi
08-01-2011, 9:35 AM
I believed that there was some honesty left in it, but I don't anymore.

Similar, though not because of your situation, but that of a friend who was railroaded into a crappy plea. I used to believe in the criminal justice system, but now I see how much like the traffic system it is. The entire thing is designed to make easier to plea, pay and make it go away than to fight for your innocence. Unless you've got 30k burning a hole in your pocket or are willing to use a public defender. :scared:

curtisfong
08-01-2011, 9:40 AM
The entire thing is designed to make easier to plea, pay and make it go away than to fight for your innocence.

Truer words. They should put this on a sign outside every courtroom.

chris12
08-01-2011, 11:14 AM
My post still stands; private property becomes quasi-public when it's open to the public for business. We don't have the same private property rights at a business that we do at a home.
Private property and open to the public are NOT mutually exclusive just because they have the words private and public in them.

Just like because something is state/federal property, like a courthouse, doesn't mean it is completely open to everyone, parts of it are private.

Meplat
08-01-2011, 7:09 PM
I believed that there was some honesty left in it, but I don't anymore.

Herein lies the true message for us all.

Godspeed Theseus.

Mike

kcbrown
08-01-2011, 8:41 PM
Even worse than the specific effects such things have on people like Theseus, is the fact that you can no longer trust the words in the law. They can mean anything and, in fact, can even have their meaning changed over time to suit the judiciary's whims of the time.

When the words in the law no longer mean what they say, but instead what someone in government (even if the judiciary) wants them to mean, then the meaning of the law itself has been lost entirely, and we are no longer governed by rule of law, but rule of men. And that is a huge sign that the time for a forced change may soon be upon us.

Southwest Chuck
08-02-2011, 9:15 AM
Even worse than the specific effects such things have on people like Theseus, is the fact that you can no longer trust the words in the law. They can mean anything and, in fact, can even have their meaning changed over time to suit the judiciary's whims of the time.

When the words in the law no longer mean what they say, but instead what someone in government (even if the judiciary) wants them to mean, then the meaning of the law itself has been lost entirely, and we are no longer governed by rule of law, but rule of men. And that is a huge sign that the time for a forced change may soon be upon us.

I agree completely with you KCB.

I brought this up in the "LOC Campsite Clarification" thread (http://www.calguns.net/calgunforum/showthread.php?t=460421) in post #13 and more specifically in post #38 (where I specifically mention Theseus' conviction), for those that are interested.