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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#281
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Benitez is a long-serving federal judge who, arguably, knows and understands the federal rules. From that, one might conclude that he knows how to write a binding order. Becerra is a long-term attorney/politician at both the federal and state levels, and is backstopped by a host of attorneys skilled in federal representation. They understand how to legally execute a federal court order, and it does them no benefit to play around with the notice directive. Given that, isn’t it more reasonable to conclude that the notice directions and the execution of the notice were both properly made?
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"People say nothing is impossible, but I do nothing every day.” "Nothing is foolproof to a sufficiently-talented fool." "The things that come to those who wait may well be the things left by those who got there first." |
#282
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Deputy Chief DA's Letter
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Mr. Underwood acknowledges the ruling by Judge Benitez and the now common term of Freedom week. The Deputy Chief does not say he just became aware of the Benitez order. His excuse for the case reaching the preliminary hearing is not lack of knowledge. I believe it reached that stage in the process because Mr. Yang did not have or offer any proof of when the magazine purchased. That to me is critical, because it's telling that without documentation, the DA can be justified in bringing the felony charge. Please correct me if I am reading that wrong, but it seems having documentation could be very important in one’s self defense (at least in some county's) to avoid the serious charge that Mr. Yang experienced. Last edited by RideWest; 06-16-2020 at 6:48 AM.. |
#283
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(BTW, you likely weren't told that one was a felony and one was a misdemeanor. Jurors aren't supposed to be told the punishment. You probably just assumed.) Giving a prohibited person access to a firearm is NOT a lesser-included offense of acquiring a large-capacity magazine. I was just writing in general times of more serious offenses in comparison to less serious offenses. The DA doesn't have to officially charge the lesser included offenses, if he or she doesn't want to. And there is nothing wrong with charging all the possible crimes that did occur. A person can commit multiple crimes by one course of action. But Californian law only punishes once per act. The example taught to me in law school was that I intentionally light someone's house on fire in order to kill that person and I do kill that person. That is both arson and murder, but I'll be punished for one of them, usually the one that is heavier. Arson is NOT a lesser-included offense of murder. They don't have elements in common. So the DA doesn't have to charge it, but a judge is supposed to instruct on lesser included offenses regardless of whether charged or not. And the jury will be told that first, they must deliberate on the greater offenses, and only if they have found not guilty on the greater offense should the jury proceed to deliberate on the lesser included offense. (Juries often don't understand this sequence and will find defendants guilty of both the greater and the lesser.) And I've already mentioned the strategic reasons why either the prosecutor or the defense attorney would oppose instructions on a lesser-included offense. |
#284
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Serving personal notice on more than 100,000 officers is a very onerous and expensive task. I suspect that Judge Benitez used the words "or otherwise" in order to soften that burden, albeit at the risk of making criminal enforcement of the order more difficult. Also keep in mind that I really doubt Judge Benitez was seeking to incarcerate state officials when he drafted the order, I have to think that his objective was simply to see it carried out. And that's what ultimately occurred in Mr. Yang's case.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#285
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“Personal service or otherwise” simply means personal service, service by mail, or electronic service. Methods of service are provided for by statute and court rules.
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Anchors Aweigh |
#286
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If the Attorney General communicates the order through an "e-mail blast", and cannot show that a person actually received notice of the order (key point being the difference between the order being "Transmitted" and the order being "Received"), and then seeks to criminally prosecute a person for the violation of the order, can the government meet their burden of proof on the elements?
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#287
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Right? Well this should make all of our lives easier then.
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The thief does not come except to steal, and to kill, and to destroy. I have come that they may have life, and that they may have it more abundantly. John 10:10 iTrader: https://www.calguns.net/calgunforum/....php?t=1888351 |
#288
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#289
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I have the transcript of the arraignment and the demurrer heading and the DA’s initial offer. Anyone care?
Edit: I should have clarified. Anyone care for my opinions about it? It seems everyone is already popping the champagne and moving on, and not caring about how Mr. Yang got to this point. I'm not offering copies. Last edited by ΜΟΛΩΝ ΛΑΒΕ; 06-16-2020 at 5:36 PM.. |
#290
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Thanks much for your efforts on this.
__________________
If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#291
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So the DA decided not to file an information. I hope Yang decides to file an lawsuit. |
#292
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Big thanks to you Rick and ΜΟΛΩΝ ΛΑΒΕ for distilling all this.
The last sentence would seem to put some teeth in the order, but only if Bercerra is called on it. "The government shall file a declaration establishing proof of such notice." Since I'm not a legal eagle there is probably some dance around that also or if it even means anything. I don't think it's too onerous to notify all the agencies involved who would thereby notify their employees. There are 58 counties and 482 cities in CA. I think it likely Bercerra would send out engraved notifications if there was an order which fit his political agenda. While all this legal hopscotch is being played, a man who should never have been arrested (from what I read) is being punished albeit indirectly. I know the big picture is victory, but I would sure feel screwed if I was him. |
#293
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sandsnow said;
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And I concur that Mr. Yang is a victim. Either of malice on the part of a deputy who admitted he knew of "Freedom Week" prior to the arrest. But chose to ignore it. Or total incompetence in the DA's office. Quote:
SA said; Quote:
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#294
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For me the bigger picture are registered assault weapons. If a person gets in an accident and is non-ambulatory then the LEO will take his RAW for safekeeping. Whose to say that person won't wake up in a hospital facing a possession of an assault weapon charge? The police cannot give it to his wife because she is not allowed to possess it. Can that RAW be given back to the person when released from the hospital? Current law says that assault weapons cannot be transferred. If an LEGR is filed will DOJ kick it back? Too much unknown. If the registration letter is in the case, would police even read it or care? |
#296
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So I've read the transcripts of the arraignment on May 27th and the hearing on the demurrer on June 8th.
An arraignment is the first court appearance at which the accused is informed of the charges and a plea to the charges is entered. A plea of guilty, not guilty, or nolo contenders (no contest) are usually entered. There's also some other options. Perhaps more relevant is that a defendant can demur to an accusatory pleading, i.e., the complaint, the information, etc., basically saying the accusatory pleading is legally defective. The grounds for demurrer, as listed in Penal Code section 1004 are: 1. The court lacks jurisdiction. An example of this is because the statute of limitations has passed, or it's charged in the wrong county. 2. Uncertainty because the language in the complaint is vague. This one usually doesn't happen, because just repeating the words used in the statute is enough to give notice. 3. Misjoinder, meaning the law on how charges are charged together was violated. This is just complicated. 4. The charges do not state a public offense. One time I successfully demurred on this ground, because the complaint alleged a violation of Health and Safety Code 11550, for being under the influence of marijuana. The problem is that HSC11550 lists a number of drugs it's illegal to be under the influence of, and marijuana is not one of them. 5. Prosecution is barred by law. A demurrer is saying that the complaint is defective for one of the reasons above. For a court to sustain a demurrer, which would cause dismissal of the complaint, the court must find that within the four corners of the complaint, that it's defective for one of the above reasons. The court does not consider the actual facts or takes evidence; it's only evaluating the words in the complaint. So in the case of People v. Pheng Yang, Tulare County Superior Court case number VCF394046, from the beginning, including the arraignment, attorney Erik Schweitzer said he was demurring to the complaint. The demurrer hearing was June 8th. The DA had an initial offer of reducing PC32310(a) to a misdemeanor and 30 days jail. The DA also noted Mr. Yang's previous criminal record. The judge gave an indicated sentence of a suspended sentence and a fine if Mr. Yang were to plead guilty to a misdemeanor. In hopes of settling the case, the judge asked for proof of when Mr. Yang purchased it, and Mr. Schweitzer firmly said the burden of proof was on the prosecution. I haven't read the complaint, but I can guess that the complaint said that on or about January 22, 2020, Phang Yeng manufactured, caused to be manufactured, imported into the state, kept for sale, offered or exposed for sale, gave, lend, bought, or received a large-capacity magazine. The key words are the date, because any of those actions on January 22, 2020 are not covered by Judge Benitez's injunction. And the judge hearing the demurrer keys in on this. She knows exactly when Freedom Week was and knows what it's about. The words in the transcript are: Quote:
I got the copies of the transcript of the arraignment and the demurrer hearing from the court reporter. People who want to get their own copies can PM me and I'll send the court reporter's information. I will not post copies as I am not taking money away from the court reporter. I would ask that people who do buy the transcript not post it online or distribute it. Court reporters make their money off selling transcripts. Last edited by ΜΟΛΩΝ ΛΑΒΕ; 06-16-2020 at 6:08 PM.. Reason: I wrote the wrong case number earlier. |
#299
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There was a run on magazines at this time. If they were sold out at a lot of places, maybe he was only able to find one?
__________________
~ El Frito Are you a Fascist and don't even realize it? Find out! https://www.idrlabs.com/8-values-political/test.php |
#300
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Made it clear that they JDGAF! |
#301
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Pheng Yang had more than one large-capacity magazine. The DA only chose to charge for one.
As a defense attorney, I would argue that only one charge of a large-capacity magazine is proper no matter how many are actually found. The actual language of Penal Code section 32310, subdivision (a) is: Quote:
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#302
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And one more time for the people in the back who still might have missed what the judge said: “Judge Benitez's stay, which the Court can take judicial notice of, I mean, this is an official act of an Article Three Judge, of the United States of America, and everyone knows that millions of these magazines were sold during Freedom Week and purchased during Freedom Week. And that was done lawfully. It is incumbent upon the People, given the exact history of this law, to allege that the gentleman got it at some time other than Freedom Week.“
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Anchors Aweigh Last edited by Mayor McRifle; 06-16-2020 at 6:48 PM.. |
#303
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Thanks very much for your contributions to this discussion.
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#304
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For What? Just because he could ? This Qualified Immunity crap has got to GO. Dep Williams should be held PERSONALLY responsible for what he did to Pheng Yang. |
#306
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And at what cost to the next Mr Yang? Since after the Major Six Month Packing that Yangs pooper got at the hands of a bad cop and the DAs. Charges will be dropped. The case will not be citeable. So it will not act as a deterrent to the next cop with a boner that wants to stitch up a citizen for 10+ magazine possession. |
#307
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dont put all your eggs in one basket
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like the old saying "dont keep all your eggs in one basket" because if you drop the basket you lose all of them. |
#308
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#310
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1) Cops are on "constructive notice" of the laws, meaning whats illegal or not illegal. Same as citizens in society more or less.
2) This guy should sue the cops who arrested him. Qualified immunity is a *****, but it should have been widely known that to just summarily arrest him for having a hi cap lacked probable cause. 3)Just because the disposition of the case isn't official precedent, as in becoming a published legal opinion, it creates more LE awareness that hi caps could be freedom week mags unless there's articulable probable cause that the mags in question couldn't have been in existence during that last week of march in 2019. For example, if Magpul releases a new generation mag today in 2020, and someone in CA buys them on a vegas trip, and a cop knows how to identify and tell the difference, then that would amount to PC for the arrest pursuant to section 32310. But without that kind of situation, there is no way to generate PC in the moment for the arrest as a violation of 32310. This case more or less teaches this proposition. |
#311
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That's the date they OBSERVED the presence of the magazine.
The arrest report ignores the fact that the mags could have been legally purchased and possessed due to the various elements of 32310 being enjoined. |
#312
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But with qualified immunity, law enforcement does not HAVE to even care.
They can just shoot first and let their gods sort it out. |
#313
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In short please point out the one part of the magazine that can't be replaced as doing so would be a "new" magazine. For a gun we all know that is the serialized part. What is the serialized part of a magazine. I would suggest possession alone is no longer enforceable. There state must provide clear strong evidence of importing or manufacturing outside of freedom week. |
#314
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Qualified immunity asks whether it was established that what the cop was about to do was wrong. That's it. If it isn't established then the cop gets qualified immunity.
There's a fairly straightforward argument that Benitez's ruling was the sort of widely known thing in LE circles. Its not a slam dunk, because courts bend over backwards to find qualified immunity. The date code issue would create valid PC for the arrest. Whether the prosecuting entity would want to bet their entire case on that, given the point about how its a replacement body, but the mag was otherwise legally obtained during freedom week, is a dice you'd have to roll. |
#315
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You can thank Chief Justice Earl Warren for Qualified Immunity, he just made it up out of thin air, its has never been Legislated, should go down the ****hole of activist judiciary.
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"The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law." - U.S. District Judge Roger T. Benitez |
#317
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Either they got the email, or the AG did not do their duty. How can it be both? |
#318
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The issue with qualified immunity is whether the issue is "clearly established."
Benitez's ruling was clearly established. And he ordered Becerra to alert all LE personnel about it. That's the argument for why the cops had at least constructive notice, if not actual notice, that possession if high cap mags without any further, specific PC, is not a reason to arrest someone anymore. But in reality, the main reason to abolish qualified immunity is that the reason for it in the first place was financial concerns. And because cops are indemnified by their unions or departments in the first place, they don't face real financial liability anyway. So the doctrine doesn't serve its intended purpose anymore, and it prevents legitimate claimants from getting justice. Its utterly fuk't. |
#319
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Judge Benitez's objective in issuing the injunction was to prevent folks from being prosecuted while the constitutionality of PC 32310 was being litigated. It was not his objective to put LEOs and prosecutors in jail. As practical matter, and consistent with judicial practice, I have to think that he crafted the service language so this would accomplish his purpose without being unduly burdensome on the Attorney General. The computer age doesn't reconcile very well with the law. I spend a brief time running a multi-agency task force working computer crimes. We could easily track the flow of information between computers, but there is no law against owning a computer that was used to send illegal content. The rub is how do you prove who's fingers were on the keyboard at the time? Or put another way, I once saw a bunch of personal e-mails that were sent to the Sheriff by deputies (who made the mistake of walking away from their computers without locking the keyboards). You really can't prove that anyone "got" an e-mail. At best all you can prove is that it was displayed on a monitor.
__________________
If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#320
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It is DAMN NEAR IMPOSSIBLE. I refer to one of the QI cases that SCOTUS just denied cert. Right here in CrapOfornia. "Jessop v City of Fresno". Below is a link and the published opinion of the 9th Circus, that SCOTUS let stand, by refusing to hear. https://www.unlawfulshield.com/cases...ity-of-fresno/ Quote:
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UNLESS IT IS THE COPS THAT ARE STEALING. THEN IT IS OK! |
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