PDA

View Full Version : Penal Code 12031


smogcity
07-19-2011, 1:53 PM
Removed by request

paul0660
07-19-2011, 1:57 PM
Crap shoot, and better than being dead. Should never be an issue unless Jane shows her gun. It is concealed, after all.

techshot
07-19-2011, 2:05 PM
LUCC, would be the way I would go.

Librarian
07-19-2011, 2:39 PM
Arrested, probably prosecuted, if she makes her case for "she is in grave danger because of circumstances forming the basis of a current restraining order", 12031 charge probably dropped.

nicki
07-19-2011, 2:53 PM
Alot would depend on the county(s) I would be in, specifically does the DA actually prosecute these cases.

Back in 1999 I did a AW registration and was getting fingerprints at a bailbondsman shop and was talking with the owner.

This subject came up and he told me that he heard that the then Santa Clara DA attorney tried to prosecute two cases of people carrying concealed using the Domestic Violence defense.

The DA lost both cases, after that, he didn't hear of any other cases being filed. Of course the DA isn't going to announce that since they struck out 2X, that they aren't going to pursue any more cases.

This doesn't mean the cops won't arrest or that the DA won't try to bluff you into a "plea deal".

What it means is it isn't a slam dunk case for them.

Post Heller/MacDonald the second amendment is now a fundamental individual right. IMHO and please correct me if I am wrong, it would seem that "anti gun" jurors could be excused for cause.

Having a "Jury" with only people who support the right to own arms for "self defense" and because of the Peruta/Richards case also support that the right does "extend outside of the home" would make these cases very interesting.

The only thing I would do in addition for your hypothetical person is have them get one or more non resident CCW permits. My reasoning is the following.

Many people don't want to see "any person" just to be able to pick up and carry a gun. The fact that someone went and got licensed by another state and that they would meet the training requirements of California would have the juror's asking why couldn't they get a permit.

The reality is most people who respect the second amendment have a lower threshold of what constitutes "good cause" than the sheriff's.

Right now if you get busted for a CCW violation and you have not applied for a CCW permit, the judge probably won't let your defense attack the sheriff's policies if you haven't applied on paper.

Many people feel it is futile to apply, but since the applications and denials are public record, all those denials pile up.

Get enough of them and you have a court admissable record that the permit process is blantantly arbitrary and capricious.

Nicki

Glock22Fan
07-19-2011, 2:53 PM
a) Concealed is concealed
b) Some officers turn blind eye to concealed as long as the person's attitude and appearance don't shout "criminal" and the person tells a good story.
c) If discovered by an unsynpathetic officer, probably prosecuted, may have to go our of her way to prove her case, hopefully case dismissed, but (as Paul said) possible crap-shoot.

Added, I agree with Nicki that an OOS CCW would also be good. Arizona usually issues pretty quickly (except that I hear one of them is sick at present).

dantodd
07-19-2011, 3:04 PM
I believe that "violation... is justifiable" legally means that an affirmative defense that the judge or jury accepts = a not guilty verdict. It is not the same as an exception to the statute. If a cop arrests AND a DA refuses to exercise prosecutorial discretion and actually files charges the defendant would have to present, to the court, why they believe they are in grave danger and hope that the court agrees that it is a reasonable fear.

In most cases I would suspect that, if the fear were reasonable the DA would let it drop. This may well not be the case in LA, SF, CoCo counties.

mdimeo
07-19-2011, 3:11 PM
LUCC, would be the way I would go.

LUCC is a better-than-nothing option for people with no specific threats they're worried about. If I thought I had a real and specific threat, I'd carry unlocked, loaded, and concealed regardless of the existence of any legal defense in the PC.

smogcity
07-19-2011, 3:24 PM
If I thought I had a real and specific threat, I'd carry unlocked, loaded, and concealed regardless of the existence of any legal defense in the PC.

In the supposition that this thread is based upon; Jane Doe is, and wishes to remain a scrupulously law abiding resident of LA County solely pondering the legal meaning/ramifications of a “justifiable violation” and that if by meeting all definitions of said “justifiable violation", does she still remain “law abiding”?

Quiet
07-19-2011, 3:44 PM
That exemption is used after you get arrested, jailed and go to court.


Penal Code 12031
(j)(2) A violation of this section is justifiable when a person who possesses a firearm reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who has or have been found to pose a threat to his or her life or safety. This paragraph may not apply when the circumstances involve a mutual restraining order issued pursuant to Division 10 (commencing with Section 6200) of the Family Code absent a factual finding of a specific threat to the person's life or safety. It is not the intent of the Legislature to limit, restrict, or narrow the application of current statutory or judicial authority to apply this or other justifications to defendants charged with violating Section 12025 or of committing other similar offenses.
Upon trial for violating this section, the trier of fact shall determine whether the defendant was acting out of a reasonable belief that he or she was in grave danger.

mdimeo
07-19-2011, 3:51 PM
...if by meeting all definitions of said “justifiable violation", does she still remain “law abiding”?

I read it quickly; it seems to be a justification for loaded carry (12031), but not concealed (12025). It also doesn't help with state or federal GFSZ, fish and game regulations, and probably lots of other things that can bite you.

Right?

Decoligny
07-19-2011, 3:58 PM
In the supposition that this thread is based upon; Jane Doe is, and wishes to remain a scrupulously law abiding resident of LA County solely pondering the legal meaning/ramifications of a “justifiable violation” and that if by meeting all definitions of said “justifiable violation", does she still remain “law abiding”?

It is just like if you had to shoot an intruder in your house because you were in fear for your life. It is an affirmative defense to the murder/manslaughter charge. It would be considered "justifiable homocide" if you can convince the jury that a reasonable person in the same situation would have done the same thing.

It would be considered "justifiable concealed carry" if she was able to convince the jury that a reasonable person in the same situation would have done the same thing.

There would be no conviction on the concealed carry/loaded firearm charge.

No conviction = law abiding citizen.

Decoligny
07-19-2011, 4:02 PM
I read it quickly; it seems to be a justification for loaded carry (12031), but not concealed (12025). It also doesn't help with state or federal GFSZ, fish and game regulations, and probably lots of other things that can bite you.

Right?

Same justification language contained in PC 12031 is addressed in PC 12025.5 for PC 12025.


12025.5. (a) A violation of Section 12025 is justifiable when a person who possesses a firearm reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who has or have been found to pose a threat to his or her life or safety. This section may not apply when the circumstances involve a mutual restraining order issued pursuant to Division 10 (commencing with Section 6200) of the Family Code absent a factual finding of a specific threat to the person's life or safety. It is not the intent of the Legislature to limit, restrict, or narrow the application of current statutory or judicial authority to apply this or other justifications to defendants charged with violating Section 12025 or of committing other similar offenses.
(b) Upon trial for violating Section 12025, the trier of fact shall determine whether the defendant was acting out of a reasonable belief that he or she was in grave danger.

BigDogatPlay
07-19-2011, 4:28 PM
Arrested, probably prosecuted, if she makes her case for "she is in grave danger because of circumstances forming the basis of a current restraining order", 12031 charge probably dropped.

^^^This^^^ is probably pretty close I think. Although, as was also said, it could depend to a great degree on the county in which all this occurs. LA county it's a pinch for sure. Siskiyou county, probably not so much.

Like real estate..... location, location, location.

hoffmang
07-19-2011, 9:06 PM
If someone has a restraining order against someone violent, one doesn't really need a 12050 permit but one would want to have an application at least submitted.

Nothing better than the 1-2-3 punch of the two exemptions and a pending application that stated a GC in line with the violent restraining order.

-Gene

Connor P Price
07-19-2011, 9:10 PM
I'm quite surprise nobody else has said this yet. Beyond the location this would also depend quite a bit on whether Jane Doe opens her mouth and proceeds to stick her foot into it during interaction with LEO. This would be quite a sticky situation in any case and it would be quite important to say as little as possible until you speak with a qualified attorney well versed in CA firearms law.

ccmc
07-20-2011, 5:39 AM
Alot would depend on the county(s) I would be in, specifically does the DA actually prosecute these cases.

Back in 1999 I did a AW registration and was getting fingerprints at a bailbondsman shop and was talking with the owner.

This subject came up and he told me that he heard that the then Santa Clara DA attorney tried to prosecute two cases of people carrying concealed using the Domestic Violence defense.

The DA lost both cases, after that, he didn't hear of any other cases being filed. Of course the DA isn't going to announce that since they struck out 2X, that they aren't going to pursue any more cases.

This doesn't mean the cops won't arrest or that the DA won't try to bluff you into a "plea deal".

What it means is it isn't a slam dunk case for them.

Post Heller/MacDonald the second amendment is now a fundamental individual right. IMHO and please correct me if I am wrong, it would seem that "anti gun" jurors could be excused for cause.

Having a "Jury" with only people who support the right to own arms for "self defense" and because of the Peruta/Richards case also support that the right does "extend outside of the home" would make these cases very interesting.

The only thing I would do in addition for your hypothetical person is have them get one or more non resident CCW permits. My reasoning is the following.

Many people don't want to see "any person" just to be able to pick up and carry a gun. The fact that someone went and got licensed by another state and that they would meet the training requirements of California would have the juror's asking why couldn't they get a permit.

The reality is most people who respect the second amendment have a lower threshold of what constitutes "good cause" than the sheriff's.

Right now if you get busted for a CCW violation and you have not applied for a CCW permit, the judge probably won't let your defense attack the sheriff's policies if you haven't applied on paper.

Many people feel it is futile to apply, but since the applications and denials are public record, all those denials pile up.

Get enough of them and you have a court admissable record that the permit process is blantantly arbitrary and capricious.

Nicki

I like the anecdotes and the analysis. I made much the same point in the Maryland thread about Williams not having applied for a Maryland permit.

johnny_22
07-20-2011, 7:20 AM
Woman thought she was protected under the exception, but, left her purse, with a gun, on the counter at a supermarket. DA prosecuted. This was 2005-2006 in San Mateo County

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/08/BAGPDGKAG41.DTL

stix213
07-20-2011, 9:06 AM
Woman thought she was protected under the exception, but, left her purse, with a gun, on the counter at a supermarket. DA prosecuted. This was 2005-2006 in San Mateo County

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/08/BAGPDGKAG41.DTL

If you read the article, she wasn't protected by the exemption because she no longer even had a restraining order but kept carrying her gun. Pretty important detail.

johnny_22
07-20-2011, 10:51 AM
If you read the article, she wasn't protected by the exemption because she no longer even had a restraining order but kept carrying her gun. Pretty important detail.

So, if you were on her jury, you would vote to convict?

johnny_22
07-20-2011, 10:58 AM
If you read the article, she wasn't protected by the exemption because she no longer even had a restraining order but kept carrying her gun. Pretty important detail.

So, if you were on her jury, you would vote to convict?

BigDogatPlay
07-20-2011, 11:12 AM
So, if you were on her jury, you would vote to convict?

In the San Mateo case, I'd have to consider doing so yes. Her exigency was no longer apparent, and the RO was dead. With that the case can be made, IMO, that the exemptions no longer apply for her.

Decoligny
07-20-2011, 11:39 AM
So, if you were on her jury, you would vote to convict?

This is where Jury Nullification comes into play.

Would you convict someone for breaking an unjust law?

You have the right to say "Not Guilty" due to the law being morally wrong.

smogcity
07-20-2011, 12:09 PM
I'm quite surprise nobody else has said this yet. Beyond the location this would also depend quite a bit on whether Jane Doe opens her mouth and proceeds to stick her foot into it during interaction with LEO. This would be quite a sticky situation in any case and it would be quite important to say as little as possible until you speak with a qualified attorney well versed in CA firearms law.

So what would the best practice be?
Present copy of restraining order, quote "justifiable violation" clause, and then state her intent to keep silent while dialing her attorney?

Librarian
07-20-2011, 12:14 PM
So what would the best practice be?
Present copy of restraining order, quote "justifiable violation" clause, and then state her intent to keep silent while dialing her attorney?
I think "This is complicated - I'll let my attorney explain. Until then, I have nothing to say without my attorney present." would be closer.

smogcity
07-20-2011, 12:31 PM
I think "This is complicated - I'll let my attorney explain. Until then, I have nothing to say without my attorney present." would be closer.

Straight and to the point.

There are truely some great minds on Calguns. Thanks to all.

Connor P Price
07-20-2011, 12:31 PM
So what would the best practice be?
Present copy of restraining order, quote "justifiable violation" clause, and then state her intent to keep silent while dialing her attorney?

I think "This is complicated - I'll let my attorney explain. Until then, I have nothing to say without my attorney present." would be closer.

Yup. Everything they taught you in elementary school about police being your friends, not talking to strangers unless their police, etc. was false. Its quite unfortunate but in a situation like this talking will never help you, it will only hurt you.

Wherryj
07-20-2011, 12:59 PM
Crap shoot, and better than being dead. Should never be an issue unless Jane shows her gun. It is concealed, after all.

-or she ends up having to use it. As said before, probably a better outcome than not having carried, but the PRK is likely to try to crucify her.