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Phil79
07-24-2011, 8:05 PM
Where is the process of Theseus' appeal currently at? Anyone have any news?

hoffmang
07-24-2011, 8:25 PM
A bad opinion will be forthcoming very soon.

-Gene

paul0660
07-24-2011, 8:28 PM
Dang.

Cokebottle
07-24-2011, 8:30 PM
A bad opinion will be forthcoming very soon.

-Gene
So Fabio was right on the money?

Theseus
07-24-2011, 8:35 PM
http://www.calguns.net/calgunforum/showthread.php?t=394266

hoffmang
07-24-2011, 8:47 PM
So Fabio was right on the money?

On this I don't think Fabio and I ever disagreed.

-Gene

Theseus
07-24-2011, 8:59 PM
you can read the opinion in the link provided to the other thread. Essentially they used rather interesting logic to agree with the trial court.

BannedinBritain
07-24-2011, 9:34 PM
you can read the opinion in the link provided to the other thread. Essentially they used rather interesting logic to agree with the trial court.

Isn't that how it usually goes? :mad:

Maestro Pistolero
07-24-2011, 10:05 PM
Is there another step here, or is this it?

BannedinBritain
07-24-2011, 10:46 PM
Is there another step here, or is this it?

State Supreme Court...but I doubt they'd even entertain it. It is infinitely difficult to get around the fact that 12 of his "peers" said he should have known he was in a school zone. Unfortunately, IMHO, throwing more money at this would be a futile gesture. The whole thing stinks to high heaven.

VegasND
07-24-2011, 11:05 PM
That is unfortunate. I was hoping there was further recourse.
State Supreme Court...but I doubt they'd even entertain it. It is infinitely difficult to get around the fact that 12 of his "peers" said he should have known he was in a school zone. Unfortunately, IMHO, throwing more money at this would be a futile gesture. The whole thing stinks to high heaven.

BannedinBritain
07-24-2011, 11:18 PM
There may be...I'm certainly no lawyer...but I think the State system goes trial court, district appeal, supreme court and that's it. Add in the possible Federal appeals and there is room to keep filing...but the cost benefit ratio has to catch up to it at some point.

snobord99
07-25-2011, 1:39 AM
State Supreme Court...but I doubt they'd even entertain it. It is infinitely difficult to get around the fact that 12 of his "peers" said he should have known he was in a school zone. Unfortunately, IMHO, throwing more money at this would be a futile gesture. The whole thing stinks to high heaven.

No, if he wants to pursue it further, there's still the 2nd District Court of Appeal (CA state appellate court). This appeal was heard in the appellate division of the LA Superior Court so there's still one more step before the state supreme court.

Maestro Pistolero
07-25-2011, 1:48 AM
How much time to appeal? Any chance there would be new precedent that might help?

scarville
07-25-2011, 6:11 AM
you can read the opinion in the link provided to the other thread. Essentially they used rather interesting logic to agree with the trial court.
Reads like the judges tortured the facts until they got the answer they wanted.

Crom
07-25-2011, 6:28 AM
I wonder if the whole conviction could be expunged after a few more victories in civil court. What if GFSZ were ruled unconstitutional?

Rude Robert
07-25-2011, 6:49 AM
If he loses this case and has to go to jail, will he ever have the right to bear arms again. Sorry for the question, but there is a lot at I don't know about how this stuff works. I read half of the link so far and this question came up in my mind so I thought that I would ask it, before I forgot. I didn't realize how bad this law is. I am often times in my back yard with my rifle and handguns practicing with Snaps. I am in a school zone, I didn't realize this law was like this at all

Maestro Pistolero
07-25-2011, 9:04 AM
I am often times in my back yard with my rifle and handguns practicing with Snaps.Is your backyard open to public foot traffic?

Decoligny
07-25-2011, 11:00 AM
If he loses this case and has to go to jail, will he ever have the right to bear arms again. Sorry for the question, but there is a lot at I don't know about how this stuff works. I read half of the link so far and this question came up in my mind so I thought that I would ask it, before I forgot. I didn't realize how bad this law is. I am often times in my back yard with my rifle and handguns practicing with Snaps. I am in a school zone, I didn't realize this law was like this at all

He already lost the first case. Got a conviction, sentenced to 36 months probabtion. I am not sure of the length of loss of firearm ownership, but IIRC it is a 10 year loss, only applicable in CA.

Since you are on your very own private property that is not open to the public, unlike the bench on the walk in front of the laundamat, you should be fine in your fenced in back yard.

gose
07-25-2011, 12:08 PM
So Fabio was right on the money?

Again? damn...

hawk1
07-25-2011, 2:46 PM
He already lost the first case. Got a conviction, sentenced to 36 months probabtion. I am not sure of the length of loss of firearm ownership, but IIRC it is a 10 year loss, only applicable in CA.

Since you are on your very own private property that is not open to the public, unlike the bench on the walk in front of the laundamat, you should be fine in your fenced in back yard.

I like the hesitation in this. You should be fine...
Based on this type of answer one should not 'play games' unless you can afford the end result. Theseus should have been fine, yet he's not.
I wouldn't want to lose my right based on you should be fine.

Decoligny
07-25-2011, 3:22 PM
Well based on the disclaimer on the website that none of what is posted here is to be taken as legal advice, everyone should immediately contact a lawyer for any gun related questions.

The fenced backyard has already been discussed to death in many other threads and the concensus has been "you are fine to carry a loaded gun, either openly, or concealed, inside your own residence, and on your own private property which is not accessible to the public".

Accessible to the public has been defined in case law as having a barrier like a gated fence, that would require somone to open it to access your property.

snobord99
07-25-2011, 5:55 PM
Well based on the disclaimer on the website that none of what is posted here is to be taken as legal advice, everyone should immediately contact a lawyer for any gun related questions.

The fenced backyard has already been discussed to death in many other threads and the concensus has been "you are fine to carry a loaded gun, either openly, or concealed, inside your own residence, and on your own private property which is not accessible to the public".

Accessible to the public has been defined in case law as having a barrier like a gated fence, that would require somone to open it to access your property.

[playing devil's advocate]: has it been discussed if said barrier has to be locked or at least have a lock?

Cokebottle
07-25-2011, 6:10 PM
[playing devil's advocate]: has it been discussed if said barrier has to be locked or at least have a lock?
General feeling is that the fence and gate alone present a reasonable barrier that defines "private property."
Same as your front door defines the entrance to your residence, whether it is locked or not.

This is codified in other areas of the PC with respect to "No Trespassing" signs posted every 200ft along a property boundary, OR installation of a fence.

Yes... we all know that your finely groomed lawn on the side of a sidewalk across from a poorly maintained city parkway (or the inverse) is private property... but without a fence/gate, there is nothing to prevent one from "stumbling" onto your property.

snobord99
07-26-2011, 3:02 AM
General feeling is that the fence and gate alone present a reasonable barrier that defines "private property."
Same as your front door defines the entrance to your residence, whether it is locked or not.

This is codified in other areas of the PC with respect to "No Trespassing" signs posted every 200ft along a property boundary, OR installation of a fence.

Yes... we all know that your finely groomed lawn on the side of a sidewalk across from a poorly maintained city parkway (or the inverse) is private property... but without a fence/gate, there is nothing to prevent one from "stumbling" onto your property.

Well, I know that that's the general consensus; however, from what I remember from the cases I read on this issue, the courts generally reasoned that a fenced area is not considered a public area because people generally cannot access the area. I don't, however, recall any case where an argument was made by the government that the fence did not have a lock and therefore people could still still access the area.

It seems to me that if the courts' (I think there was more than one) reasoning was "people cannot access" therefore not public area then it's not a stretch for the government to argue "no lock = people can access therefore public area." If that argument is made, I'm not so sure the court(s) would still say "no, non-public area."

Theseus
07-26-2011, 5:49 AM
Would a logical reasoning be if the moving of said barrier would constitute the breaking part of breaking and entering?

Sent from my MB525 using Tapatalk

Joewy
07-26-2011, 6:14 AM
Almost all pulic buildings have security, locks, metal detectors so on and so forth and they are still concidered public areas...

Decoligny
07-26-2011, 8:05 AM
[playing devil's advocate]: has it been discussed if said barrier has to be locked or at least have a lock?

IIRC the case law in question the gate was simply closed and did not have a lock, yet it was still determined to be an adequate barrier to exclude it from being considered "a public place".

The circumstances included a cop entering the property through a gate to arrest someone who was seen standing in the fenced in front yard of the property and had a gun in his waistband.

The cop arrested the guy for a PC 12031 loaded gun violation which was overturned on appeal.

snobord99
07-26-2011, 1:21 PM
IIRC the case law in question the gate was simply closed and did not have a lock, yet it was still determined to be an adequate barrier to exclude it from being considered "a public place".

The circumstances included a cop entering the property through a gate to arrest someone who was seen standing in the fenced in front yard of the property and had a gun in his waistband.

The cop arrested the guy for a PC 12031 loaded gun violation which was overturned on appeal.

No, I agree with you that the cases (far as I remember as well) did not involve gates which were locked; however, what I meant was that I don't remember the issue of "there was no lock" ever being raised. Thus, while the courts have said "this lockless gate qualifies" they've never really said "there need be no lock for it to qualify." Get what I mean?

Glock22Fan
07-27-2011, 10:15 AM
IIRC the case law in question the gate was simply closed and did not have a lock, yet it was still determined to be an adequate barrier to exclude it from being considered "a public place".

The circumstances included a cop entering the property through a gate to arrest someone who was seen standing in the fenced in front yard of the property and had a gun in his waistband.

The cop arrested the guy for a PC 12031 loaded gun violation which was overturned on appeal.

Not trying to do anything other than clear up my own mind, as I have no dog in this fight, but does this not fly in the face of accepted wisdom that if the UPS guy can walk up to your front door, your front yard isn't private?

Decoligny
07-27-2011, 10:53 AM
Not trying to do anything other than clear up my own mind, as I have no dog in this fight, but does this not fly in the face of accepted wisdom that if the UPS guy can walk up to your front door, your front yard isn't private?

The UPS guy is not "the general public", he has a specific purpose for entering the private property.

In one of the cases cited in People v. Strider, one of the defining characteristics that make a place "not a public place" is a barrier to common or general use. In regards to Strider's unlocked fence, it was stated "its appearance suggests its purpose is to block entry into the yard and act as a barrier to common or general use."

Therefore just by having the gated fence in place, it makes the yard private property that is not a public place.

Theseus
07-27-2011, 9:36 PM
Here is the rub. If the point is to create a noticeable barrier indicating that the property isn't for general or common use, why can't a private property sign, along with a sign limiting the use of the parking lot, and conditional use of the property to customers while prohibiting loitering, skateboarding and other activities not the same thing? Why must it be a physical barrier?

newbee1111
07-28-2011, 1:31 PM
Here is the rub. If the point is to create a noticeable barrier indicating that the property isn't for general or common use, why can't a private property sign, along with a sign limiting the use of the parking lot, and conditional use of the property to customers while prohibiting loitering, skateboarding and other activities not the same thing? Why must it be a physical barrier?

Because "conditional use of the property to customers" still means its open to the public. Anyone could be a customer so anyone can park in the parking lot. The same thing goes for the the general laundry area of a laundrymat. The business gave anyone with a few quarters, some soap and some dirty clothes permission to be there. That's why its considered a "public" area.

Theseus
07-28-2011, 7:50 PM
Because "conditional use of the property to customers" still means its open to the public. Anyone could be a customer so anyone can park in the parking lot. The same thing goes for the the general laundry area of a laundrymat. The business gave anyone with a few quarters, some soap and some dirty clothes permission to be there. That's why its considered a "public" area.

Actually, this laundry mat requires what essentially is a membership fee to get a "value card". The machines don't actually accept quarters.

And, as in Tapia, the reasoning the court used to suggest that Tapia's sidewalk was not private property was his inability to prohibit use of the sidewalk. But a business can prohibit people from the parking lot and property, including skate boarders, loiterers, and people from overnight parking. Essentially, what I am saying, is that the use of the property is not general. You can't loiter, you can't trespass (as in use the property without being a customer), etc.

So, if the laundry mat did have a barrier, but was still open to the public, you argue that, because it has a physical barrier, then it is not still open to the public? My point is that the barrier doesn't change the "open to the public" issue. Why is a physical barrier any different than a functional one, like a school zone?

newbee1111
07-29-2011, 11:40 AM
Actually, this laundry mat requires what essentially is a membership fee to get a "value card". The machines don't actually accept quarters.

And, as in Tapia, the reasoning the court used to suggest that Tapia's sidewalk was not private property was his inability to prohibit use of the sidewalk. But a business can prohibit people from the parking lot and property, including skate boarders, loiterers, and people from overnight parking. Essentially, what I am saying, is that the use of the property is not general. You can't loiter, you can't trespass (as in use the property without being a customer), etc.

So, if the laundry mat did have a barrier, but was still open to the public, you argue that, because it has a physical barrier, then it is not still open to the public? My point is that the barrier doesn't change the "open to the public" issue. Why is a physical barrier any different than a functional one, like a school zone?

The laundrymat was still open for anyone to walk in, with or without the value card. It wouldn't be considered private unless there was some access control requiring the card to open or at least put up signage on the door saying that it wasn't open to the public and you needed to be a member to enter. But that would be a really weird business model.

I don't think that its the physical barrier that's important, its that part of the property is clearly marked as being for employees only. Usually some type of barrier is used to do that but it doesn't have to actually block access. A partial counter with a gap permitting access would be fine as long as it had a sign saying employees only. Any reasonable person would assume that a general member of the public isn't allowed to go there by the business owner. The rest is pretty much open to the public by default.

I think one thing that you are missing is that in most cases a retail business isn't going to be considered "private property" in any way that's going to allow open carry for a customer. The exception I think would be if you were in an employees only area with the explicit permission of the business owner to be there and to open carry. As soon as you move back into the area where customers are hanging around then you might as well be on the sidewalk and that sidewalk had better be more than 1000' from a school.

The parking lot is still considered public even though they put up signs prohibiting loitering and skateboarding because the lot is still open to the public. Any member of the public could park there, conduct some business at a shop and would be welcome. The presumption is that its open. The skateboarder that was kicked off the property would be welcomed back if he drove there, parked and stopped at one of the shops.

Cokebottle
07-29-2011, 6:52 PM
And the owner of the laundry has the right to expel anyone from the property and to file trespassing charges if they refuse or return.
The parking lot, being more of a common area for several businesses may not be quite so clear... and what I gathered from some of the statements in the original thread, had he been inside the laundry rather than sitting on the bench on the sidewalk, he would not have been charged.

One of the comments made by the DA's staff shows a clear ignorance of legal transportation within a school zone...
"...the sidewalk is private property, but it had to get there somehow..."

Implying that Theseus did not legally carry the gun through the RFSZ onto the private property... so even if he wasn't in violation on that sidewalk, she felt that he must have been in violation at some point prior.

BTW: The gun was in a locked container in the trunk of his vehicle during transport to the parking lot.

Theseus
08-01-2011, 7:19 AM
The laundrymat was still open for anyone to walk in, with or without the value card. It wouldn't be considered private unless there was some access control requiring the card to open or at least put up signage on the door saying that it wasn't open to the public and you needed to be a member to enter. But that would be a really weird business model.

I don't think that its the physical barrier that's important, its that part of the property is clearly marked as being for employees only. Usually some type of barrier is used to do that but it doesn't have to actually block access. A partial counter with a gap permitting access would be fine as long as it had a sign saying employees only. Any reasonable person would assume that a general member of the public isn't allowed to go there by the business owner. The rest is pretty much open to the public by default.

I think one thing that you are missing is that in most cases a retail business isn't going to be considered "private property" in any way that's going to allow open carry for a customer. The exception I think would be if you were in an employees only area with the explicit permission of the business owner to be there and to open carry. As soon as you move back into the area where customers are hanging around then you might as well be on the sidewalk and that sidewalk had better be more than 1000' from a school.

The parking lot is still considered public even though they put up signs prohibiting loitering and skateboarding because the lot is still open to the public. Any member of the public could park there, conduct some business at a shop and would be welcome. The presumption is that its open. The skateboarder that was kicked off the property would be welcomed back if he drove there, parked and stopped at one of the shops.

And I still refuse to let this be the case. How is a business parking lot open to the public any different than within a business open to the public?

Its the use of the open to the public part that bothers me. If I had been on the public sidewalk, I would have swallowed this long ago and been happy to accept it, but the absurdity of this interpretation makes the simple act of choosing the wrong parking space in a business parking lot the difference between a law-abiding citizen and a soon-to-be convicted felon. Further, what exactly does or does not constitute private property for the purposes of 626.9 is still, even after my case, not clearly defined. Whether someone is a felon, or a law-abiding citizen is now going to be fully up to the officers and DA's interpretation of what is private property for the purposes of 626.9. This is exactly the kind of thing we should be fighting.

Add to all of this, that the police use the private property exemption to support how they can have gun buy-back events in church parking lots when directly across the street from school.

I don't even care as much if I ever get my gun-rights back, so long as we can correct the wrong that is the logic they used in my case.

monk
08-01-2011, 8:39 AM
Couldn't they have argued that since a police officer can't conduct his business on a private business's parking lot without permission,that equates to NOT being public property?

BobB35
08-01-2011, 9:04 AM
And I still refuse to let this be the case. How is a business parking lot open to the public any different than within a business open to the public?

Its the use of the open to the public part that bothers me. If I had been on the public sidewalk, I would have swallowed this long ago and been happy to accept it, but the absurdity of this interpretation makes the simple act of choosing the wrong parking space in a business parking lot the difference between a law-abiding citizen and a soon-to-be convicted felon. Further, what exactly does or does not constitute private property for the purposes of 626.9 is still, even after my case, not clearly defined. Whether someone is a felon, or a law-abiding citizen is now going to be fully up to the officers and DA's interpretation of what is private property for the purposes of 626.9. This is exactly the kind of thing we should be fighting.

Add to all of this, that the police use the private property exemption to support how they can have gun buy-back events in church parking lots when directly across the street from school.

I don't even care as much if I ever get my gun-rights back, so long as we can correct the wrong that is the logic they used in my case.

So, what is your status? Are you going to appeal further? Can you appeal further? This type of stuff is terrible and I dont' know how it stands. Heck I thought you couldn't arrest someone for a misdemeanor not committed in the presence of an LEO unless it was immediate concurrent. You arrest came days later.....this is activism and selective prosecution on the part of the DA....what about a 14th amendment challenge....I would say that you are not getting equal treatment by the LAW.

Maestro Pistolero
08-01-2011, 9:35 AM
So, what is your status? Are you going to appeal further? Can you appeal further?Interested to know this as well. It seems to this layman there may need to be some new basis upon which to proceed. A successful GFSZ challenge, for example. But even plain-old carry outside the home is at least a year away. If GFSZs were to be struck in a couple of years, what would the procedure be for Theseus to get his rights back early?

Theseus
08-02-2011, 6:06 PM
I can appeal more, but to what benefit? I no longer see any hope for vindication. I am now just a casualty of war.

hammerhands32
08-02-2011, 6:49 PM
State Supreme Court...but I doubt they'd even entertain it. It is infinitely difficult to get around the fact that 12 of his "peers" said he should have known he was in a school zone. Unfortunately, IMHO, throwing more money at this would be a futile gesture. The whole thing stinks to high heaven.

So is this the point where it is better to be carried by six than judged by twelve?

Theseus
08-02-2011, 7:05 PM
State Supreme Court...but I doubt they'd even entertain it. It is infinitely difficult to get around the fact that 12 of his "peers" said he should have known he was in a school zone. Unfortunately, IMHO, throwing more money at this would be a futile gesture. The whole thing stinks to high heaven.

Again, the "should have known" is only a small subset of the issue and one we aren't really fighting. We only fought that the burden of proof was not overcome.

OleCuss
08-02-2011, 7:11 PM
I can appeal more, but to what benefit? I no longer see any hope for vindication. I am now just a casualty of war.

I agree. While I'd be rooting for you all the way during your appeal, I think the odds of success are too dismal to make it worth the investment of the time and money it would consume.

It sucks.