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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 08-12-2011, 7:26 PM
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Default High-Cap Magazine Possession = QuasIllegal? (People v. Sun (2007)148 Cal.App.4th 374)

Appellate court incorporates "possession" of a high capacity magazine into 12020(a)(2) ....when said statute does not use that word... The statute says: " (2) Commencing January 1, 2000, manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any large-capacity magazine."

So, I noticed that the only published case in California regarding an interpretation of 12020 (a)(2) is generally: People v. Sun (2007)148 Cal.App.4th 374 , 55 Cal.Rptr.3d 696 Available at: http://www.lawlink.com/research/caselevel3/84196#B0003

First: "The District Attorney of Orange County appeals from two different orders of the Orange County Superior Court in the above-titled case. In one of these two consolidated cases, the appeal is from an order which dismissed nine counts in the indictment charging violations of Penal Code section 12020, subdivision (a)(2), possession of large-capacity magazines." Not a footnote, seemingly a binding published appellate definition in the main text....slightly dicta, but disturbing.

Direct your attention to Footnote 4: "FN 4. Section 12020, subdivision (a)(2) prohibits the possession, importation or offer to sell "any large-capacity magazine." (Emphasis added.)" The court has added "possession" in a published case, thus making this somewhat binding law. Although it's a footnote, which is often dicta, it can also be binding.... (Since the holding wasn't on this topic and it was dismissed for other reasons, this is also disturbing.)

Just wondering if anyone had any thoughts on this. (I am an attorney, I performed a Lexis search on this topic to see all published cases, and this is what I noticed, but this isn't my area of law).

Disclaimer: I am a lawyer, but I am not YOUR lawyer, and my observations should not be construed as a legal opinion for you to rely on in any way shape or form.

Last edited by Nazrico; 08-12-2011 at 7:33 PM..
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Old 08-12-2011, 7:34 PM
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Interesting
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Old 08-12-2011, 8:48 PM
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very interesting. Thanks for sharing.
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Old 08-12-2011, 8:49 PM
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Tag for a response from the big-wigs.
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Old 08-12-2011, 8:52 PM
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Should ask one of the mods to put this in 2A laws forum, a lot more traffic there.

interesting indeed.
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Old 08-12-2011, 10:04 PM
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Yeah, not sure where to put it, if someone can flag mods, would be great to hear some dialogue, lots of knowledgeable people here, seems to be a good deal of other attorneys as well.

At least, might be good to point out this could be a grey area, for now.
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Old 08-12-2011, 10:05 PM
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Also, I shepardized the case as well. (Lawyer term for cross checking every other case via a paid legal search engine, and whether they agree disagree etc.) Seems like the holding is still valid.
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Old 08-12-2011, 10:32 PM
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Eh, my rough reading of the foot note cited is the opinion incorrectly paraphrased the language of section 12020(a)(2) "keeps for sale" as "possession" as it applied to the facts in this case.

And I say rough because I referenced a 2008 Penal Code and 2 beers.

Most likely a typo or oversight. The legislature writes the law and the judicial interprets/applies the law - I don't see how a footnote using language of "possession" could change 12020(a)(2) in any significant way - i.e. they simply can't re-write the law.

What I found more interesting was the fact that the appellate court still basically destroyed the DA's case by affirming the court's granting of the suppression motion because the defendant had federal immunity under the NFA to register his inventory --> that shiz is way over my head.
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Old 08-12-2011, 10:35 PM
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Good idea. Moved.

I an NOT a lawyer, and I think this case is not relevant to 'possession', but I'm willing to be persuaded differently.

In 'Facts' the opinion says
Quote:
Agents of the California Department of Justice executed the search warrant on Sun's home and business. The state agents discovered an amazingly large inventory of assault weapons which Sun intended to sell, fn. 3 as well as 23,000 "large-capacity magazine[s]." (? 12020, subd. (a)(2).) fn. 4 Due to the discovery of these items, the grand jury issued an indictment charging Sun with 10 counts of violating section 12020, subdivision (a)(2), based on the large-capacity ammunition magazines, and 43 counts of violating section 12280, subdivision (b), based on the assault weapons.
but does not say what part, what act, was committed in violation. Import or manufacture, if that's what was alleged, would be 'good'. But the Sun opinion does not say the grand jury charged with possession.

With 23,000, I rather expect the charge was 'import (or 'keeps for sale', as LawStudent notes), but without the actual indictment, I don't know.

If 'possession' were charged here, IMHO, a competent defense attorney would cite PC for the proposition that since 'possession' is not prohibited, the OC DA is charging for a non-existent crime.
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Old 08-12-2011, 10:52 PM
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As a practical matter, all one has to do is print the CA AG's Assault Weapons Identification Guide and point the DA to page 74: http://ag.ca.gov/firearms/forms/pdf/awguide.pdf

Case dismissed.

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Old 08-12-2011, 11:58 PM
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You mean their restricted semiauto rifle guide?
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Old 08-13-2011, 12:14 AM
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Quote:
Originally Posted by hoffmang View Post
As a practical matter, all one has to do is print the CA AG's Assault Weapons Identification Guide and point the DA to page 74: http://ag.ca.gov/firearms/forms/pdf/awguide.pdf

Case dismissed.

-Gene
Gene,

That's not entirely accurate. Since the awguide.pdf is merely the Attorney General opinion notes, which are not binding law. An appellate court in this state has jurisdiction to bind all lower courts until a court of superior review stays their ruling or reverses it. (With some exceptions, like two conflicting equal appellate courts)

The fact the attorney general has noted one particular interpretation would likely entitle one to a "mistake of law" defense. Typically, this defense is "I didn't know it was illegal," and this defense almost always fails, because one is charged with active knowledge of the laws in the state, unless under limited conditions an authority states an interpretation and one follows it.

When I worked for the City Attorney's Office as an attorney of a 300k+ city in California, we often consulted AG Opinions, but they were never "binding," in the way a court decision is. To quote from a AG website: "Although the authority of the Attorney General to render opinions is not questioned and those services are regularly requested, the opinions themselves are not binding on the courts. Some courts have given individual opinions great weight and some have rejected them. '

That said, it appears in not only FN 4 but as well as the opening opinion commentary, that interprets the law, or rather says what the law says.. The interpretation probably comes from the fact that Section 12020's title includes the header "possession" (if you view the law text) (of course that does not mean each subsection prohibit possession, but some do) and then applied that down in the language.

Point being, if I were working as a prosecutor and my superiors wanted me to make an issue of this we could probably sneak past a sympathetic judge with this appellate decision that states "Law X prohibits possession." However, that's not to say that the argument would be iron clad.

Since this interpretation doesn't really impact the holding, it's most likely dicta, but it's the type of dicta a zealous DA might pursue...in either case, I don't think it's a good typo!

While it may be a "typo" in the opinion/paraphrase, the law swings both ways, when legislatures "typo" a law, some courts refuse to read sense into the law, even if the typo is obvious and unquestioned...and in those cases people get off because of a typo...some jurisprudence theories would likely accept the view that a judicial decision with a typo is binding, since the decision says what it says, and technically we aren't supposed to read anything more than that (According to Scalia at least, who famously said something along the lines of "Just because Justice Stephens wrote an opinion doesn't mean he knows what it means, he doesn't, it means what it says, and that's it.") But again, some courts read "sense" into laws...and it's this uncertainty that keeps lawyers in business, and people in fear!

I'd hope the Supreme Court of California would easily strike down this interpretation if it were ever applied...but honestly, I don't know if I'd want to be a test case and sit in jail while this works its way up!

Last edited by Nazrico; 08-13-2011 at 12:19 AM..
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Old 08-13-2011, 12:27 AM
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Courts have come out with stranger ideas before from bodies of law...where in the Constitution do you see a right to privacy? There isn't any right to privacy or a mention of the word, it's in fact a combination of various "penumbras" some various parts of the bill of rights which "magically" forms the right to privacy because it is "common sense."


....... There are many more conlaw examples of courts inventing stuff based on "common sense" and Super-Legislaturism.
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Old 08-13-2011, 12:48 AM
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You mean their restricted semiauto rifle guide?
Ha!
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Old 08-13-2011, 12:55 AM
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You mean their restricted semiauto rifle guide?
Is that $10? (Or double for the two awful letters in the URL?)
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Old 08-13-2011, 1:22 AM
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Old 08-13-2011, 1:32 AM
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Quote:
Originally Posted by Nazrico View Post
That's not entirely accurate.
I'll repeat myself. It's the practical answer.

You forget a couple of things. In a criminal matter we're talking about the reasonable doubt standard. As such, most every DA, even the ones in the small geography that might be influenced by the typo, doesn't care to take on a loser.

Let me add in the additional fact that in that district we've had the charge dropped. DA's, even there, don't see it your way.

It's very hard to enforce a strict liability statute that doesn't even have a penal code textual basis.

Edited to add: CGF would absolutely adore a case where a DA was dumb enough to keep pushing this under your theory!

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Old 08-13-2011, 1:55 AM
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Quick someone use the gunshow loophole!~
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Old 08-13-2011, 2:02 AM
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Quick someone use the gunshow loophole!~
Hahahaha!

Very interesting case
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Old 08-13-2011, 8:35 AM
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Quick someone use the gunshow loophole!~
Do you mean the firearms non-permanent market loophole?
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Old 08-13-2011, 10:52 AM
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Do you mean the firearms non-permanent market loophole?
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Old 08-13-2011, 12:04 PM
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Well, they said we didn't have the right to keep arms either, except with the permission of the government and locked up in government arsenals. But this magazine law is even more blatantly clear, and therefore we can be practically certain that if our Heller five are still sitting, no conviction for possession would ultimately be upheld on appeal to the federal courts. However, if Obama gets the chance to replace one of our Heller five, all bets are off. It wouldn't matter what the law says. Even our Heller five decided to change the law they didn't like and adopt the absurd "in common use" standard.
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Old 08-13-2011, 1:43 PM
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Do you mean the firearms non-permanent market loophole?
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Old 08-14-2011, 1:55 AM
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Originally Posted by hoffmang View Post
I'll repeat myself. It's the practical answer.

You forget a couple of things. In a criminal matter we're talking about the reasonable doubt standard. As such, most every DA, even the ones in the small geography that might be influenced by the typo, doesn't care to take on a loser.

Let me add in the additional fact that in that district we've had the charge dropped. DA's, even there, don't see it your way.

-Gene
Sorry if I came across as sounding like I was advocating this was the correct way, I was just playing Devil's Advocate I suppose. I completely agree that this is a low probability issue now that you've brought up these facts (AG opinion, etc.), but thought it was worth bringing up for discussion. Thanks for clarifying!

I'm glad you've had positive experiences having this charge dropped, as it should be! Let me add that I appreciate all that Calguns does to protect our rights in this state, and individuals like yourself who make yourselves test cases (RE: your registered assault weapons permit case).

Quote:
Originally Posted by hoffmang View Post

It's very hard to enforce a strict liability statute that doesn't even have a penal code textual basis.
Quick side question, as you seem to be really at the forefront of our 2A rights fight, I was wondering is 12020 always punished as a strict liability offense?

I noticed that 12080(b) (Possession of an unregistered assault weapon, also a "wobbler") was interpreted in In re Jorge M., 23 Cal. 4th 866 (Cal. 2000), as: "The court noted the statute did not mention a specific mental state. It held the State had to prove, and did prove, defendant knew or should have known the firearm in question possessed the characteristics that make it an illegal assault weapon under the statute. The court held the legislature did not intend for possession to be a strict liability crime, because assault weapons had some legitimate uses, but also did not contemplate a harsh scienter requirement such as actual knowledge because the statute was meant to protect public safety." (Lexis Summary)

And wondering if 12020 had been prosecuted as a strict liability offense as well, or if any prosecution under that had been prosecuted as strict liability, and whether that person considered challenging on that grounds? Forgive me if the answer/law is already out there, I just ran a 5 minute search and didn't come up with much.

(In my head I have conjured up a few scenarios where this could be important.)

Thanks again!

Last edited by Nazrico; 08-14-2011 at 1:56 AM.. Reason: fixed a late-work-night typos/grammar issues
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Old 08-14-2011, 9:57 AM
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Isn't there a specific exemption to own standard cap mags, like if you owned them before 2000? If that's the case then how could possession ever be considered illegal??
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Old 08-14-2011, 10:59 AM
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Isn't there a specific exemption to own standard cap mags, like if you owned them before 2000? If that's the case then how could possession ever be considered illegal??

Simple possession can't directly be criminalized - yes, the statute was written as such so that folks owning pre-2000 magazines were allowed to retain them, as well as reimport back to CA after travelling outside CA.

The actual construction of the statute basically allows mag possession of over-10-rd magazines that the individual owned/possessed within CA before 2000 - regardless of current or past CA residency status, and regardless of how long that individual was in CA. An AZ resident could have bought 10+ round mags in 1998 at the Pomona, CA gunshow and never returned to CA after that until, say, today - and his return to CA with those 10+ round magazines is completely legal. That is, if the 10+ round mags were inside CA with the owner for even one microsecond, that's good enough.

Now, do remember there's the 'smell test' that should be regarded in a sane manner until some separate areas of progress in the field are completed.

Someone who was very very young in 2000 will 'smell bad' as well as someone having mags for gun designs not yet available in 2000 (S&W M&P, XDm, etc.)

Let's continue, for now, to separate and avoid what is possibly defendable with what is squared away conduct that requires little or no lawyering to defend.

The real worry is that people thinking they know this stuff and who are skirting around the edge will get in some drama and either talk themselves into jail, or will make their case costly to defend when CGF is trying to fix this another way, along with a mess of other priorities too.

Once we get to a certain 'progress' point in the 10+ round mag arena, and initiate special path to mag acquisition, there will be so many mags coming from the path there will be no reason to remotely suspect illegal acquisition paths, and the law will be on the books but will be unenforceable.
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Old 08-14-2011, 11:41 AM
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Quote:
Originally Posted by bwiese View Post
Simple possession can't directly be criminalized - yes, the statute was written as such so that folks owning pre-2000 magazines were allowed to retain them, as well as reimport back to CA after travelling outside CA.

The actual construction of the statute basically allows mag possession of over-10-rd magazines that the individual owned/possessed within CA before 2000 - regardless of current or past CA residency status, and regardless of how long that individual was in CA. An AZ resident could have bought 10+ round mags in 1998 at the Pomona, CA gunshow and never returned to CA after that until, say, today - and his return to CA with those 10+ round magazines is completely legal. That is, if the 10+ round mags were inside CA with the owner for even one microsecond, that's good enough.

Now, do remember there's the 'smell test' that should be regarded in a sane manner until some separate areas of progress in the field are completed.

Someone who was very very young in 2000 will 'smell bad' as well as someone having mags for gun designs not yet available in 2000 (S&W M&P, XDm, etc.)

Let's continue, for now, to separate and avoid what is possibly defendable with what is squared away conduct that requires little or no lawyering to defend.

The real worry is that people thinking they know this stuff and who are skirting around the edge will get in some drama and either talk themselves into jail, or will make their case costly to defend when CGF is trying to fix this another way, along with a mess of other priorities too.

Once we get to a certain 'progress' point in the 10+ round mag arena, and initiate special path to mag acquisition, there will be so many mags coming from the path there will be no reason to remotely suspect illegal acquisition paths, and the law will be on the books but will be unenforceable.

In other words, be patient the relief you seek is coming...
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Old 08-14-2011, 11:47 AM
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Quote:
Originally Posted by Nazrico View Post
Quick side question, as you seem to be really at the forefront of our 2A rights fight, I was wondering is 12020 always punished as a strict liability offense?

...

And wondering if 12020 had been prosecuted as a strict liability offense as well, or if any prosecution under that had been prosecuted as strict liability, and whether that person considered challenging on that grounds? Forgive me if the answer/law is already out there, I just ran a 5 minute search and didn't come up with much.
It's a bit of a mix. Some of the 12020 prohibited items are purely intent. We've seen folks charged with 12020 for a baseball bat in the car. Many of those prosecutions disappear going to the issue that I think 12020 is unconstitutionally vague in a post McDonald world (generally.) I'd point you to People v. James for the thought that Jorge is basically ignored by the courts.

-Gene
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