Theseus & LA UOC charges

[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.