[demnogis]

IIRC, "Private Property" was not needing a definition within 626.9 because it is pre-defined as property not owned by the public (or state).

"Allowing a judge to answer a question of fact and/or a jury answer a question of law is wrong and against well established jurisprudence."

You're right about the judge in the first half, but wrong in the second half of your statement. It is the jury's job not only to question the facts, but the act and the law. The judge doesn't define private property - it was written in the law. The jury should understand that private property should always mean non-publicly owned property!

[bodger]

Originally Posted by demnogis

IIRC, "Private Property" was not needing a definition within 626.9 because it is pre-defined as property not owned by the public (or state).

"Allowing a judge to answer a question of fact and/or a jury answer a question of law is wrong and against well established jurisprudence."

You're right about the judge in the first half, but wrong in the second half of your statement. It is the jury's job not only to question the facts, but the act and the law. The judge doesn't define private property - it was written in the law. The jury should understand that private property should always mean non-publicly owned property!

This is exactly where I get confused and remain so about Theseus' case from the git-go.

If you're on private property that is open to the public, and that's as good for a conviction as if you were walking down the sidewalk right in front of a school, why the hell isn't it defined that way in the law?

Well, that's a dumb question. It assumes the laws should make sense and be understandable. Never mind.

[snobord99]

Originally Posted by demnogis

You're right about the judge in the first half, but wrong in the second half of your statement. It is the jury's job not only to question the facts, but the act and the law. The judge doesn't define private property - it was written in the law. The jury should understand that private property should always mean non-publicly owned property!

Actually, you're wrong. Law's for the judge, facts for the jury. Judge says what the law is and jury decides what actually happened and if the law (as instructed by the judge) was broken. If the law was up to the jury, then why bother having jury instructions? You could just tell the jury "the charge was murder, you decide if it happened...don't worry about the elements." There's a reason a judge will ask potential jurors if they can follow the law as instructed or if they will come to a verdict based on their personal beliefs.

I'm just curious, but how many people saying that the judge was wrong regarding the private vs public property actually read the relevant case law? I hate to say it, but from the case law I see (granted I haven't done THAT much research into it) and general societal norms the judge's ruling was correct. Think of it this way, if you saw someone that was piss drunk in that same parking lot, would you say a cop was totally wrong for citing that person for being drunk in public?

I think the real issue here is knowledge and without having done the research, I would think this is a difficult issue to win on appeal.

[bodger]

Originally Posted by snobord99

Actually, you're wrong. Law's for the judge, facts for the jury. Judge says what the law is and jury decides what actually happened and if the law (as instructed by the judge) was broken. If the law was up to the jury, then why bother having jury instructions? You could just tell the jury "the charge was murder, you decide if it happened...don't worry about the elements." There's a reason a judge will ask potential jurors if they can follow the law as instructed or if they will come to a verdict based on their personal beliefs.

I'm just curious, but how many people saying that the judge was wrong regarding the private vs public property actually read the relevant case law? I hate to say it, but from the case law I see (granted I haven't done THAT much research into it) and general societal norms the judge's ruling was correct. Think of it this way, if you saw someone that was piss drunk in that same parking lot, would you say a cop was totally wrong for citing that person for being drunk in public?

I think the real issue here is knowledge and without having done the research, I would think this is a difficult issue to win on appeal.

Theseus has stated some optimism regarding his appeal. I think he said his attorney shared the same.

I wonder what the greatest strength of the case is for appeal?

[snobord99]

Originally Posted by bodger

Theseus has stated some optimism regarding his appeal. I think he said his attorney shared the same.

I wonder what the greatest strength of the case is for appeal?

I wonder the same. As much as everyone wants the scream activist judge, the fact of the matter is that judges hate getting overturned on appeal and I highly doubt he happened to run into a judge that didn't care if he was likely to be overturned.

[demnogis]

snobord99, please read this: Juror's Handbook.

Originally Posted by snobord99

Actually, you're wrong. Law's for the judge, facts for the jury. Judge says what the law is and jury decides what actually happened and if the law (as instructed by the judge) was broken. If the law was up to the jury, then why bother having jury instructions? You could just tell the jury "the charge was murder, you decide if it happened...don't worry about the elements." There's a reason a judge will ask potential jurors if they can follow the law as instructed or if they will come to a verdict based on their personal beliefs.

I'm just curious, but how many people saying that the judge was wrong regarding the private vs public property actually read the relevant case law? I hate to say it, but from the case law I see (granted I haven't done THAT much research into it) and general societal norms the judge's ruling was correct. Think of it this way, if you saw someone that was piss drunk in that same parking lot, would you say a cop was totally wrong for citing that person for being drunk in public?

I think the real issue here is knowledge and without having done the research, I would think this is a difficult issue to win on appeal.

[snobord99]

Originally Posted by demnogis

snobord99, please read this: Juror's Handbook.

Ok, they have the "power," but good luck getting on a jury if you tell the judge that you have no problem disregarding their instructions. Yes, the jury has the power to do that, but that's largely because the prosecution can't appeal an acquittal.

Is it the jury's job to say what the law is? Absolutely not. If it was the jury's job to say what the law was, then we wouldn't need judges. There's a difference between having the power to do something and having a job to do something. Just because you can do something doesn't mean it's a good idea.

From an article written by the author of your source (James Joseph Duane, What Message Are We Sending to Criminal Jurors When We Ask Them to "Send a Message" With Their Verdict? 22 Am. J. Crim. L. 565, fn101):

"The present contours of the doctrine of jury nullification are a bit unclear. See generally M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101 (1993) (outlining the history of jury nullification as well as modern trends). The "power" of the jury to return a verdict contrary to the law and the facts is undisputed. Horning v. District of Colombia, 254 U.S. 135, 138 (1920). This power is the inevitable corollary of the constitutional rule that "there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming." Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979). But most courts that have considered the question have held that trial judges should tell juries of their duty to follow the law and not to tell them of this "power," even if the jury asks about the concept. United States v. Sepulveda, 15 F.3d 1161, 1189-90 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994); United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1991); United States v. Dougherty, 473 F.2d 1113, 1136 (D.C. Cir. 1972); United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988). However, there is some authority that defense counsel should be allowed to ask for a form of nullification in closing arguments by asking the jury to acquit out of considerations of mercy or justice. United States v. Burkhart, 501 F.2d 993, 997 n. 3 (6th Cir. 1974), cert. denied, 420 U.S. 946 (1975); United States v. Datcher, 830 F. Supp. 411 (M.D. Tenn. 1993). But see United States v. MacDonald, 933 F.2d 1519, 1526 (10th Cir. 1991) (denying the defense counsel's request for jury instructions from the trial court on penalties involved); United States v. Goodface, 835 F.2d 1233, 1237 (8th Cir. 1987) (denying the defense counsel's request for jury instructions on severe mandatory sentence); United States v. Cox, 696 F.2d 1294, 1298 (11th Cir. 1983) (stating that the trial court's general instruction on punishment was only allowed because the judge informed the jury "that potential punishment was not their concern"). For a recent example of this defense strategy at work, see infra note 190."

[joelberg]

Originally Posted by demnogis

snobord99, please read this: Juror's Handbook.

That's a good handbook which more people should read. It really needs to be handed out to all jurors or at least included in high school civics.

[Theseus]

Originally Posted by snobord99

Actually, you're wrong. Law's for the judge, facts for the jury. Judge says what the law is and jury decides what actually happened and if the law (as instructed by the judge) was broken. If the law was up to the jury, then why bother having jury instructions? You could just tell the jury "the charge was murder, you decide if it happened...don't worry about the elements." There's a reason a judge will ask potential jurors if they can follow the law as instructed or if they will come to a verdict based on their personal beliefs.

I'm just curious, but how many people saying that the judge was wrong regarding the private vs public property actually read the relevant case law? I hate to say it, but from the case law I see (granted I haven't done THAT much research into it) and general societal norms the judge's ruling was correct. Think of it this way, if you saw someone that was piss drunk in that same parking lot, would you say a cop was totally wrong for citing that person for being drunk in public?

I think the real issue here is knowledge and without having done the research, I would think this is a difficult issue to win on appeal.

I will just ask then, what is this mystical case law that suggests that private property is not exempt by 626.9?

[mej16489]

Originally Posted by snobord99

I'm just curious, but how many people saying that the judge was wrong regarding the private vs public property actually read the relevant case law? I hate to say it, but from the case law I see (granted I haven't done THAT much research into it) and general societal norms the judge's ruling was correct. Think of it this way, if you saw someone that was piss drunk in that same parking lot, would you say a cop was totally wrong for citing that person for being drunk in public?

So, you want to take the example of a law which explicitly states public place and compare it to another section of the penal code which specifically exempts private property?!?

-------------------

647. Every person who commits any of the following acts is guilty
of disorderly conduct, a misdemeanor:
(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.


626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(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.

[Southwest Chuck]

I read it as two exemptions. A place of BUSINESS, and PRIVATE PROPERTY. One is a subset of the other. It seems the judge tried to change the meaning and intent "as written" of the law.

There are different meanings of the same word in different parts of the law. You can't (or shouldn't be able to) take one meaning of a word from one part of the law and apply it to a different part of a law where clearly that word had a different meaning and thus implying a certain intent. If you do, then you change the intent.

But what do I know... I'm only trying to apply logic to the law...

[Cokebottle]

Originally Posted by Southwest Chuck

I read it as two exemptions. A place of BUSINESS, and PRIVATE PROPERTY. One is a subset of the other. It seems the judge tried to change the meaning and intent "as written" of the law.

Bingo.

Had Theseus remained inside of the building, it would have been very clearly "within a place of business". At that point, the only question could possibly have been (assuming the lockable storage case was still in the vehicle) how he got from the vehicle to the place of business without UOC.

The "private property" exemption covers that, so long as he was not parked on a public street, and yes... "private property open to the public" is still "private property", even though it is "a public place".
"Within a place of business" can also qualify as "a public place" under 647, but is specifically exempted from 626.9.

The judge has redefined the definition of private property within the bounds of 626.9 in a way that is clearly not consistent with the author's intent.

How the heck the jury reached a unanimous verdict is beyond my comprehension. I can't believe that there wasn't at least one holdout... other than the fact that it was Friday and they wanted to get back to work Monday.



"Place of Residence" would be wholly contained within the red area not touched by orange or blue.

[snobord99]

Private property is exempt. The problem arises with how the courts have (edited, that should say "a court has") interpreted "private property" within the meaning of CPC 626.9. For the most part, you really have to read the whole opinion and its reasoning to understand why the court came out the way it did. I'll use the most on-point case I've found in the relatively little I've looked into it, People v. Tapia, 129 Cal. App. 4th 1153 (a case of first impression), deals with a guy who had a gun on the sidewalk that was his "private property" subject to a public easement. You can distinguish this case based on the public easement, but I'm not sure that a court will be convinced that it's a significant distinction. As the Tapia court says, there are 2 interpretations of private property, "one focused on ownership, the other focused on the use made of the property." Luckily for us, they didn't actually say which is the proper interpretation; however, if you read the opinion, its reasoning and the tone of the writing, I'm pretty sure that if they thought they needed to say which is the "proper" interpretation, they would have gone with the latter.

Edit: There are other cases that don't deal with 626.9 which come across a similar question. As the Tapia court pointed out, those cases are usually defining a "public place" as opposed to "private property" so they are distinguishable on those grounds so I won't mention them; however, the reasoning used in those cases could be used here and if (big if) that type of reasoning is accepted, this is going to be a slam dunk for the AG.

[bigcalidave]

Originally Posted by Cokebottle

Bingo.

Had Theseus remained inside of the building, it would have been very clearly "within a place of business". At that point, the only question could possibly have been (assuming the lockable storage case was still in the vehicle) how he got from the vehicle to the place of business without UOC.

The "private property" exemption covers that, so long as he was not parked on a public street, and yes... "private property open to the public" is still "private property", even though it is "a public place".
"Within a place of business" can also qualify as "a public place" under 647, but is specifically exempted from 626.9.

The judge has redefined the definition of private property within the bounds of 626.9 in a way that is clearly not consistent with the author's intent.

How the heck the jury reached a unanimous verdict is beyond my comprehension. I can't believe that there wasn't at least one holdout... other than the fact that it was Friday and they wanted to get back to work Monday.



"Place of Residence" would be wholly contained within the red area not touched by orange or blue.

Did you just make that? LOL... Can you do one for gun laws in general?

[Cokebottle]

Originally Posted by bigcalidave

Did you just make that? LOL... Can you do one for gun laws in general?

Ya... in MS Paint... but I don't know the ins and outs of gun laws in general to do one (I'm at least 50% ignorant on CCW-specific laws as it doesn't currently apply to me), and I'm not sure it's possible with a diagram that simplified.

Honestly... until a couple of weeks ago, I didn't know that UOC was legal anywhere in CA other than unincorporated.

[FABIO GETS GOOSED!!!]

Originally Posted by snobord99

Private property is exempt. The problem arises with how the courts have (edited, that should say "a court has") interpreted "private property" within the meaning of CPC 626.9. For the most part, you really have to read the whole opinion and its reasoning to understand why the court came out the way it did. I'll use the most on-point case I've found in the relatively little I've looked into it, People v. Tapia, 129 Cal. App. 4th 1153 (a case of first impression), deals with a guy who had a gun on the sidewalk that was his "private property" subject to a public easement. You can distinguish this case based on the public easement, but I'm not sure that a court will be convinced that it's a significant distinction. As the Tapia court says, there are 2 interpretations of private property, "one focused on ownership, the other focused on the use made of the property." Luckily for us, they didn't actually say which is the proper interpretation; however, if you read the opinion, its reasoning and the tone of the writing, I'm pretty sure that if they thought they needed to say which is the "proper" interpretation, they would have gone with the latter.

Edit: There are other cases that don't deal with 626.9 which come across a similar question. As the Tapia court pointed out, those cases are usually defining a "public place" as opposed to "private property" so they are distinguishable on those grounds so I won't mention them; however, the reasoning used in those cases could be used here and if (big if) that type of reasoning is accepted, this is going to be a slam dunk for the AG.

Sounds like a good assessment to me. I'd like to see the jury instructions from this trial.

[curtisfong]

Originally Posted by bodger

every gunnie in this state is in constant jeopardy of being arrested for nothing.

This is as designed. With a sufficient number of selectively enforced laws, this can be expanded to

Every citizen in this country is in constant jeopardy of being arrested for nothing.

Why do you think the benchmark for a "good" legislator is "number of laws passed"? The long term tendency of any government is to lean towards fascism/oligarchy/dictatorship.

[GrizzlyGuy]

Originally Posted by snobord99

...People v. Tapia, 129 Cal. App. 4th 1153 (a case of first impression), deals with a guy who had a gun on the sidewalk that was his "private property" subject to a public easement. You can distinguish this case based on the public easement, but I'm not sure that a court will be convinced that it's a significant distinction.

A more significant distinction between the Tapia case and Theseus's case is the legislative intent of 626.9. In Tapia, the appellate court said "the intent of the Legislature in enacting the law was to further the safety of students at and on their way to and from school".

Tapia was standing on the sidewalk that runs along his street. One would expect students to use such a sidewalk on their way to and from school.

Theseus wasn't on the sidewalk that runs along the street. My understanding is that he was on private property between the laundromat and its parking lot. One wouldn't expect students to walk through the private property of a business, that isn't a sidewalk along a public street, on their way to and from school.

And, up in the introduction for the Tapia case it says "we conclude a sidewalk on an easement of way granted to a public entity does not qualify as private property within the meaning of section 626.9, subdivision (c)(1)". That isn't the case here, there is no public entity, only a privately owned laundromat.

So even if their means of 'publicly accessible private property' analysis is applied to Theseus's case, Theseus's conviction should still be overturned.

FYI for other readers, here is the People v. Tapia case:

http://74.125.155.132/search?q=cache...ient=firefox-a

[snobord99]

Originally Posted by GrizzlyGuy

A more significant distinction between the Tapia case and Theseus's case is the legislative intent of 626.9. In Tapia, the appellate court said "the intent of the Legislature in enacting the law was to further the safety of students at and on their way to and from school".

Tapia was standing on the sidewalk that runs along his street. One would expect students to use such a sidewalk on their way to and from school.

Theseus wasn't on the sidewalk that runs along the street. My understanding is that he was on private property between the laundromat and its parking lot. One wouldn't expect students to walk through the private property of a business, that isn't a sidewalk along a public street, on their way to and from school.

Yes, the court said "the intent of the Legislature in enacting the law was to further the safety of students at and on their way to and from school." Problem here is that it's not where the kids physically walk that is going to be the focus, it's where the person with the gun will be. You're protecting kids from a shooter, not from themselves (granted in some cases the shooter will also be a student). Your point basically says that if there is a person with a gun and they want to shoot at kids, they can only do so from the sidewalk. We all know that a shooter does not have to be on the sidewalk to shoot kids; they could easily stand in a parking lot to shoot kids on the sidewalk because they "expect students to use such a sidewalk on their way to and from school." That said, how does banning guns on a sidewalk, but allowing them in the parking lot adjacent to that sidewalk, protect the kids that commonly use the sidewalk (leaving aside the argument that the law is asinine in the first place)?

Originally Posted by GrizzlyGuy

And, up in the introduction for the Tapia case it says "we conclude a sidewalk on an easement of way granted to a public entity does not qualify as private property within the meaning of section 626.9, subdivision (c)(1)". That isn't the case here, there is no public entity, only a privately owned laundromat.

I know. I was pointing this distinction out when I said "You can distinguish this case based on the public easement." There's a reason I said you had to read the opinion (which I can tell you did), because you have to know how they thought. Perhaps our interpretations are just different, but the "protect the children" legislative intent argument doesn't help us IMO.

[GrizzlyGuy]

Originally Posted by snobord99

Yes, the court said "the intent of the Legislature in enacting the law was to further the safety of students at and on their way to and from school." Problem here is that it's not where the kids physically walk that is going to be the focus, it's where the person with the gun will be. You're protecting kids from a shooter, not from themselves (granted in some cases the shooter will also be a student). Your point basically says that if there is a person with a gun and they want to shoot at kids, they can only do so from the sidewalk. We all know that a shooter does not have to be on the sidewalk to shoot kids; they could easily stand in a parking lot to shoot kids on the sidewalk because they "expect students to use such a sidewalk on their way to and from school." That said, how does banning guns on a sidewalk, but allowing them in the parking lot adjacent to that sidewalk, protect the kids that commonly use the sidewalk (leaving aside the argument that the law is asinine in the first place)?

I understand that, but according to this post over in the 'bare facts' thread, "Theseus was contacted by Law Enforcement outside the front door of the Laundry Mat (I think he went out to have a smoke)". I don't know if that is true or not, and I don't know the layout of this property. But if the door of the laundromat faced away from the street, with the building thereby being a 'ballistic shield' between him and the public sidewalk, he should be OK.

Also, bullets penetrate glass windows quite well. So anyone legally possessing a gun within a street-side business could conceivably snipe at the kiddies through their windows without even needing to open them or step outside. Surely the legislature didn't mean to assure with certainty that it was impossible for any harm to come to kids on the sidewalk from firearms, else they would have placed a blanket ban on firearms anywhere within the school zone.

I don't think we want to get into how Theseus got to that point from his car. AFAIK Theseus has never said (a good thing), and the LEOs didn't search his car or other personal property at the laundromat (other than to yank his wallet out to get his ID). He may have open carried, used a locked container, had someone else transport the firearm to his position, etc. We'll have to ask him after his appeal is over and the assuredly successful outcome is achieved.

[snobord99]

Originally Posted by GrizzlyGuy

I understand that, but according to this post over in the 'bare facts' thread, "Theseus was contacted by Law Enforcement outside the front door of the Laundry Mat (I think he went out to have a smoke)". I don't know if that is true or not, and I don't know the layout of this property. But if the door of the laundromat faced away from the street, with the building thereby being a 'ballistic shield' between him and the public sidewalk, he should be OK.

Also, bullets penetrate glass windows quite well. So anyone legally possessing a gun within a street-side business could conceivably snipe at the kiddies through their windows without even needing to open them or step outside. Surely the legislature didn't mean to assure with certainty that it was impossible for any harm to come to kids on the sidewalk from firearms, else they would have placed a blanket ban on firearms anywhere within the school zone.

I don't think we want to get into how Theseus got to that point from his car. AFAIK Theseus has never said (a good thing), and the LEOs didn't search his car or other personal property at the laundromat (other than to yank his wallet out to get his ID). He may have open carried, used a locked container, had someone else transport the firearm to his position, etc. We'll have to ask him after his appeal is over and the assuredly successful outcome is achieved.

Sigh...I wish I could be this optimistic. Unfortunately, all that matters now isn't what was posted or what the facts were. What matters now is what the appellate court thinks the jury accepted as the facts, assuming they decide to hear the case. As to which way the door to the laundromat was facing, I have no idea if that was even placed into evidence. Even if it was, I don't think an appeals court that would say the parking lot (or area right outside door) was not private property would then say "unless there's a wall in between." I know you can easily shoot through the window of a business, but the court isn't going to consider that. It's not going to be before them. Even if they consider that you can shoot through windows, for it to make a difference you'd have to conclude that the legislature wasn't actually trying to protect the children.

Hope for the best but expect the worst. I just wish I didn't actually expect the worst here . I hope I'm proven wrong.

[Theseus]

Ah. . . .Another victim of People v. Tapia.

That was the case the judge used as well to attempt tp justify his expansion of 626.9.

First, the legislative intent, as communicated by the author in a letter to then Governor Brown was not only to protect school children, but the rights of gun owners as well.

The exemptions provided indicate the presence of a dual purpose.

Also. . . even Tapia made the "public place" argument. The instructions given the jury in the Tapia case:

"If you find, beyond a reasonable doubt, that the sid[e]walk in front of 1257 East 40th Place, Los Angeles, California, is a public place, then that sidewalk is not private property within the meaning of Penal Code Section 626.9(b). [¶] The term 'public place' means any place which is open to common or general use, participation and enjoyment by members of the public."

Here is what the court of appeal had to say about that:

Tapia contends both the exclusion of the proffered evidence and the instruction were erroneous, and the purported errors deprived him of his constitutional right to present a defense. (See, e.g., People v. Cash (2002) 28 Cal.4th 703, 727.) We agree that a portion of the trial court's instruction was erroneous.

And here is a nice little tidbit that supports my argument:

That the Legislature did not necessarily intend section 626.9 to be governed by the "public place" analysis is also suggested by the exception for places of business. It is readily apparent that a great many places of business are open to common use and enjoyment by members of the public. Nonetheless, section 626.9's exception expressly encompasses places of business.

All from the Tapia case.

I will let that speak for me. But all this is dicta because it doesn't matter. Since Tapia was guilty of having a loaded weapon he was not exempt on private property which required that the possession be otherwise lawful.

Originally Posted by snobord99

Yes, the court said "the intent of the Legislature in enacting the law was to further the safety of students at and on their way to and from school." Problem here is that it's not where the kids physically walk that is going to be the focus, it's where the person with the gun will be. You're protecting kids from a shooter, not from themselves (granted in some cases the shooter will also be a student). Your point basically says that if there is a person with a gun and they want to shoot at kids, they can only do so from the sidewalk. We all know that a shooter does not have to be on the sidewalk to shoot kids; they could easily stand in a parking lot to shoot kids on the sidewalk because they "expect students to use such a sidewalk on their way to and from school." That said, how does banning guns on a sidewalk, but allowing them in the parking lot adjacent to that sidewalk, protect the kids that commonly use the sidewalk (leaving aside the argument that the law is asinine in the first place)?



I know. I was pointing this distinction out when I said "You can distinguish this case based on the public easement." There's a reason I said you had to read the opinion (which I can tell you did), because you have to know how they thought. Perhaps our interpretations are just different, but the "protect the children" legislative intent argument doesn't help us IMO.

[snobord99]

Originally Posted by Theseus

I will let that speak for me. But all this is dicta because it doesn't matter. Since Tapia was guilty of having a loaded weapon he was not exempt on private property which required that the possession be otherwise lawful.

Yup...but dicta's all we have for now and based on my reading of the opinion as a whole, the Tapia court would consider a parking lot to be outside the realm of private property also. At the end of the day, they concluded "Whatever else [private property] means, we believe it cannot reasonably be applied to a sidewalk on an easement of way which has been granted to a public entity. The obvious purpose of the statute is to protect children at and near schools. This purpose would be frustrated if the very public sidewalks upon which schoolchildren walk to school were considered outside the scope of the law." You've already seen what I thought of the legislative intent argument. I wish I saw it another way, but I'm trying to be objective.

It doesn't help my optimism that this case is in the same district as Tapia and the judge that wrote the opinion is still there (at least the odds of it going to division 3 are slim).

[Theseus]

Well, I disagree with your observation, but you are entitled to it.

The law is even more frustrated when you subject a private party parking lot to this interpretation. When a person could be a felon by parking in one spot that is within 1000 feet of a school, but the ont adjasent to it is not.

I believe that this law was already a bit ridiculous and unconstitutional as applied, but when you expand it to the levels the judges are talking about they are ignoring the clear language of the law.

As a matter of fact, the original drafts of 626.9 had specifically used the language of "public places". This language was changed to achieve the other intent of "protecting lawful gun owners".

Extending that protection to the parking lot of the business and home exemptions only makes logical sense. Otherwise you run into an issue where a person can't use a gun to stop a man from kidnapping their daughter on their front lawn near a school because they are not within a residence and the front yard is open to the public.

But also have faith that there are many other legal issues at play other than simply "private property" exemption.

[GrizzlyGuy]

Originally Posted by snobord99

Yup...but dicta's all we have for now and based on my reading of the opinion as a whole, the Tapia court would consider a parking lot to be outside the realm of private property also. At the end of the day, they concluded "Whatever else [private property] means, we believe it cannot reasonably be applied to a sidewalk on an easement of way which has been granted to a public entity. The obvious purpose of the statute is to protect children at and near schools. This purpose would be frustrated if the very public sidewalks upon which schoolchildren walk to school were considered outside the scope of the law." You've already seen what I thought of the legislative intent argument. I wish I saw it another way, but I'm trying to be objective.

OK, but now tie all of that all together with what Theseus posted and you'll see why I'm optimistic.

Tapia apeallate rightly said that the trial court's jury instructions were wrong, since businesses are 'public places' and the legislature exempted businesses. Surely the legislature couldn't mean "private property" = "public place" within that statute. Good so far.

Where Tapia apeallate erred was in their reasoning that you bolded. They ASSumed, arbitrarily, that kiddies were at risk from armed people standing on the sidewalk. That reasoning was flawed, because it begs the following slippery-slope question: How far away from the kiddies must the armed person be for the legislature's intent to be met?

If a guy is standing in his house 50 feet from the sidewalk, in front of his picture glass window, with a loaded and legally registered AW... aren't the kiddies still in danger? Would the danger be significantly less if he was halfway across his yard and only 25 feet from the sidewalk? How about 10 feet? 5 feet? What if he is hiding behind some bushes? Behind a brick wall? Where do you draw the line?

Therefore, the only interpretation of "private property" in 626.9 that makes any sense, even considering the legislature's intent, is the plain English meaning of that term. The "private property" = "public place" argument, whether it is a public sidewalk or a bench outside of a laundromat... falls on its face.

Originally Posted by snobord99

It doesn't help my optimism that this case is in the same district as Tapia and the judge that wrote the opinion is still there (at least the odds of it going to division 3 are slim).

Dohhhh!! Why did you have to ruin my Theseus-surely-walks buzz with the reality of human nature?

[Southwest Chuck]

Originally Posted by Theseus

But also have faith that there are many other legal issues at play other than simply "private property" exemption.

I think another issue is that the police took Theseus' wallet and Identified him without his consent. Without that identification aspect, he would have never been identified and charged after the fact. The fruit of the poison tree, so to speak.

[Theseus]

Sentencing was yesterday.

3 Years summary probation.

No search waiver.

Weapons condition, which is believed to not be enforceable in any state other than California.

Total $1200 fines & assessments, 5 days CalTrans - suspended until June or completion of appeal.

[grammaton76]

What does 5 days CalTrans mean?

BTW, glad to hear the sentence is fairly light. If you do appeal, I assume that they can't re-sentence you to a harsher one, so the worst case scenario is moving out of CA once the appeal is lost (if it goes that way).

[Shotgun Man]

Originally Posted by Theseus

Sentencing was yesterday.

3 Years summary probation.

No search waiver.

Weapons condition, which is believed to not be enforceable in any state other than California.

Total $1200 fines & assessments, 5 days CalTrans - suspended until June or completion of appeal.

Congratulations on the sentence. No jail time. Even the caltrans was suspended.

Godspeed.

[rkt88edmo]

Would someone mind explaining what weapons condition means?

Hang in there, whats the next step in the appeal?

[Shotgun Man]

Originally Posted by rkt88edmo

Would someone mind explaining what weapons condition means?

Hang in there, whats the next step in the appeal?

As a condition of probation, you're not allowed to possess dangerous or deadly weapons, including guns.

[Ron-Solo]

Originally Posted by Theseus

Sentencing was yesterday.

3 Years summary probation.

No search waiver.

Weapons condition, which is believed to not be enforceable in any state other than California.

Total $1200 fines & assessments, 5 days CalTrans - suspended until June or completion of appeal.

Pretty typical sentence for someone with a clean record.

A word of caution, the "weapons restriction" as a "condition of probation" applies ANYWHERE until probation is completed.

Restrictions on possession based on the PC code conviction section per CA law would probably only be enforceable in CA.

For the other post, 5 days CalTrans means picking up trash along the freeways. It was only suspended until June or completion of appeal per Theseus' original post.

[inbox485]

Originally Posted by Theseus

Sentencing was yesterday.

3 Years summary probation.

No search waiver.

Weapons condition, which is believed to not be enforceable in any state other than California.

Total $1200 fines & assessments, 5 days CalTrans - suspended until June or completion of appeal.

Is the entire sentence suspended until June / COA or just the fine?

Are you currently prohibited in CA? If so, sounds like there needs to be a CG and/or OCDO shoot in NV or AZ.

[Ron-Solo]

The conditions of his probation cover him everywhere, so nothing for 3 years or he could get violated.

His best bet is wait to see what, if anything, happens on appeal.

[Theseus]

Originally Posted by Shotgun Man

As a condition of probation, you're not allowed to possess dangerous or deadly weapons, including guns.

That is not what was explained to me. It was explained that I am simply prohibited per 12022 or whichever one prohibits me from firearms. The paper they gave me suggests the same. . . only restating the 12022 prohibition.

[Shotgun Man]

Originally Posted by Theseus

That is not what was explained to me. It was explained that I am simply prohibited per 12022 or whichever one prohibits me from firearms. The paper they gave me suggests the same. . . only restating the 12022 prohibition.

I'll stand corrected then.

Best wishes on your appeal.

[inbox485]

Originally Posted by Theseus

That is not what was explained to me. It was explained that I am simply prohibited per 12022 or whichever one prohibits me from firearms. The paper they gave me suggests the same. . . only restating the 12022 prohibition.

So, you're planning your next vacation out of CA?

[Ron-Solo]

Originally Posted by Theseus

That is not what was explained to me. I.

Over the years I've seen many people back in front of a judge because they didn't understand the conditions of probation. Please be careful.

[inbox485]

Just curious, but how much has the legal bill totaled?

[Cokebottle]

Originally Posted by Ron-Solo

so nothing for 3 years or he could get violated.

You could have worded that a bit better. That's sig material


Theseus, You have both my feelings of relief and sympathy. I'm very happy that you are not going to have to serve time. The 5 days of CalTrans will be a mix of trash pickup, which is cake, and heavy hoeing of weeds out of the iceplant, which is a royal PITA and hard work. Honestly, even though it is suspended until June, I would see if I could go ahead and get the CT work out of the way in March... you don't want to be digging weeds in July.
I did 13 days in February and March back in '93 and there were some days when it was miserably hot out there on the road. In addition to the fines and fees, I also had to pay $200 in admin costs to get on the CT roster, so budget a little extra for that, and of course, I would expect it to be more than $200 now almost 20 years after my case.

I'm really hoping that this comes out in your favor on appeal.