Theseus Appeal - DA Brief - Update 7/25/11

[Theseus]

So, I have been told not to discuss the facts, or our strategy. All I am doing is providing you with what would otherwise be publicly available documents.

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

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

http://onlinegunsafe.com/docs/theseus/DAsBrief.pdf
http://onlinegunsafe.com/docs/theseu...cialNotice.pdf
http://onlinegunsafe.com/docs/theseus/ScottAOBFinal.pdf
http://www.calguns.net/calgunforum/attachment.php?attachmentid=103401&stc=1&d=1311564 431
http://www.calguns.net/calgunforum/a...1&d=1311564599

[anthonyca]

I am on my phone so it's really slow to load that brief that exceeded the word limit.

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

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

[E Pluribus Unum]

Originally Posted by Theseus

So, I have been told not to discuss the facts, or our strategy. All I am doing is providing you with what would otherwise be publicly available documents.

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

Did you ever post your brief?

[Theseus]

No, but I guess I should, huh?

[RP1911]

The way i see it, there are two prongs that could set you free.

1) Attack the constitunality of 626.9

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

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

[snobord99]

Originally Posted by RP1911

The way i see it, there are two prongs that could set you free.

1) Attack the constitunality of 626.9

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

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

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

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

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

[Veggie]

Good luck man. I have a feeling you're gonna win.

[E Pluribus Unum]

At trial no one made it apparent that the officers themselves did not know they were in a school zone?

[snobord99]

Originally Posted by E Pluribus Unum

At trial no one made it apparent that the officers themselves did not know they were in a school zone?

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

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

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

[Blackhawk556]

I can't open the docs on my phone, can someone post what this case is about? Thanks

[Librarian]

Originally Posted by Blackhawk556

I can't open the docs on my phone, can someone post what this case is about? Thanks

VERY briefly....

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

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

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

[Blackhawk556]

^^^Thanks, you always have the answers :-). This is the first I hear of this case

[Purple K]

Good Luck on your appeal!

[Havoc70]

If you want I can put the files on my web server. Good luck with the appeal!

[choprzrul]

So, how can they say my front yard isn't private without a fence, but a laundromat that the public can readily walk into is private??? Seems to me that they want it both ways.

.

[Window_Seat]

I wish you only the best for your appeal, and I hope you prevail 100%.

Erik.

[Theseus]

Originally Posted by snobord99

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

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

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

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

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

[NightOwl]

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

[OC_Gunman]

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

[Decoligny]

Originally Posted by choprzrul

So, how can they say my front yard isn't private without a fence, but a laundromat that the public can readily walk into is private??? Seems to me that they want it both ways.

.

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

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

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

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

[Untamed1972]

Originally Posted by OC_Gunman

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

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

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

[Librarian]

Originally Posted by Decoligny

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

Which is why the DA's argument is bemusing:

As will be seen, allowing Appellant to avail himself of the private property defense would completely frustrate the goals of section 626.9, which is known as The Gun Free School Zone Act of 1995 (hereafter The Gun Act), and would lead to absurd results.

It's hardly our fault if the legislature wrote the law poorly.

[Joe]

Awesome. Hope you get a ruling in your favor.

[greg36f]

Originally Posted by Untamed1972

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

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

They have one year to file after the crime occured.

[Theseus]

Originally Posted by Librarian

Which is why the DA's argument is bemusing: It's hardly our fault if the legislature wrote the law poorly.

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

[Purple K]

Any news?

[Falconis]

Originally Posted by greg36f

They have one year to file after the crime occured.

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

[Sgt Raven]

Originally Posted by Decoligny

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

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

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

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

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

[locosway]

If you still need those files hosted here they are.

http://onlinegunsafe.com/docs/theseus/DAsBrief.pdf
http://onlinegunsafe.com/docs/theseu...cialNotice.pdf
http://onlinegunsafe.com/docs/theseus/ScottAOBFinal.pdf

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

[Letitrip]

Good luck theseus. I have been to that area many times and i never noticed that school.

[gotgunz]

Without reading through all the replies.....
Doesn't this pretty much make the private property defense valid?

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


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

BTW, who is this godsend of a DA anyways?

[Anchors]

Good luck man.
The real blow is becoming prohibited.
I hope you at a bare minimum get your rights back.

[Zorrm]

Wishing you the best of luck with this.

[Monte]

Good luck, man. I really hope you beat this BS.

[NightOwl]

Theseus, can you post when ya all expect the next bit of action in the case (from either side)? Just curious as to how long till the next update.

[Theseus]

A quick update on this situation. My oral arguments were scheduled for May 5th, I believe, but the court delayed seeking more time to figure out the answer.

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

[wildhawker]

Originally Posted by Theseus

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

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

[Theseus]

Originally Posted by wildhawker

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

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

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

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

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

[Window_Seat]

As I said before, I hope you prevail.

Erik.

[Librarian]

Nice brief - seems to address all the things you didn't get to say first time around.

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