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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  
Old 06-16-2020, 6:16 AM
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Quote:
Originally Posted by RickD427 View Post
I'm not closely familiar with the federal rules concerning service. That's an important point because the court order involved here is a federal one. [...]
Judge Benitez did leave the Attorney General a lot of leeway through his choice of words in the order " Defendant Becerra shall provide, by personal service or otherwise ...."
Rick, your first statement seems to negate your final conclusion.

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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  #282  
Old 06-16-2020, 6:40 AM
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Originally Posted by RickD427 View Post
Please note that the D.A.'s letter discussing the dismissal of Mr. Yang's charges was carefully worded to communicate that the D.A. admitted having knowledge of the court order after the Preliminary Hearing was held. There is no admission that the DDA filing the complaint was aware of the order when the complaint was filed."
Rick can you take another look at the letter that was released by the Deputy Chief DA. I read it somewhat differently than the last few members, and admit I may be wrong. But, the Deputy Chief states someone senior in the office reviews all cases after the preliminary hearing. Mr. Underwood then mentions he became aware of "this case" - Mr. Yang's case after the preliminary hearing, and during their normal review process.

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..
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  #283  
Old 06-16-2020, 7:13 AM
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Originally Posted by jay_cue View Post
so an interesting tid bit i learned by being on a jury. might be short hand and miss things since i’m on my phone. but it was a criminal case. original charges were felony assault and felony robbery. but when deliberating we had 2 option for both charges. well i suppose technically three. it gave us an outline of basically if we found them guilty for the felony charge. if we didn’t deem there was sufficient evidence, we could find them guilty for a lesser charge. so we could have found them guilty of felony assault. if not then could find them guilt of misdemeanor battery instead. or completely innocent. same went for felony robbery. alternative was misdemeanor petty theft instead. or completely innocent. we didn’t really get the information of the possibility of a lesser charge until the end when we were given the instructions for deliberation. which brings me to wonder if that’s how the specific case i was on was handled, at what point would a prosecutor choose to try to convict on a lesser charge to begin with, if that’s an option if the jury doesn’t find them guilty for the higher charge.
In California (and in most jurisdictions) there is a concept known as a "lesser-included offense." If crime A has 4 elements, and crime B has the same 4 elements as crime A plus an additional element, then crime A is a lesser-included offense of crime B. In every single event of crime B, there is also an event of crime A as well. In your case, it's likely the felony charge was assault with a deadly weapon. Assault with a deadly weapon is the crime of assault, and the additional element of a deadly weapon being used that in assault. So every crime of assault of deadly weapon is also an assault, usually called "simple assault." Simple because no other additional element on top. Similarly, every robbery in which property is taken from a person by force or fear is also a theft as well.

(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.
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  #284  
Old 06-16-2020, 10:11 AM
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Rick, your first statement seems to negate your final conclusion.

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?
I don't think so. But I'll also argue that Mr. Becerra's objective was not to comply with the notice requirements in the order in a way that would facilitate enforcement on legal officials, but in a way that would frustrate such enforcement. No official want to make it easy for someone to spank their colleagues.

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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  #285  
Old 06-16-2020, 11:19 AM
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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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  #286  
Old 06-16-2020, 11:32 AM
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Originally Posted by Mayor McRifle View Post
“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.
That's cool but it misses the point.

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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  #287  
Old 06-16-2020, 12:10 PM
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So, ignorance of the law is an excuse?
Right? Well this should make all of our lives easier then.
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  #288  
Old 06-16-2020, 12:28 PM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
In California (and in most jurisdictions) there is a concept known as a "lesser-included offense." If crime A has 4 elements, and crime B has the same 4 elements as crime A plus an additional element, then crime A is a lesser-included offense of crime B. In every single event of crime B, there is also an event of crime A as well. In your case, it's likely the felony charge was assault with a deadly weapon. Assault with a deadly weapon is the crime of assault, and the additional element of a deadly weapon being used that in assault. So every crime of assault of deadly weapon is also an assault, usually called "simple assault." Simple because no other additional element on top. Similarly, every robbery in which property is taken from a person by force or fear is also a theft as well.

(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.
thanks for the explanation. we were told, or it was outlined in the jury packet which was a felony and which was a misdemeanor. but we were instructed not to take into consideration what the consequences would be either way.
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  #289  
Old 06-16-2020, 12:54 PM
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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..
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  #290  
Old 06-16-2020, 1:11 PM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
I have the transcript of the arraignment and the demurrer heading and the DA’s initial offer. Anyone care?
Yes, very much so. PM inbound.

Thanks much for your efforts on this.
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  #291  
Old 06-16-2020, 2:14 PM
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Wow, so the charges are not filed, does that mean he walks free and they keep the mag?
It's probably in a deputy's mag pouch, where it will stay.

So the DA decided not to file an information. I hope Yang decides to file an lawsuit.
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  #292  
Old 06-16-2020, 2:19 PM
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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.
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  #293  
Old 06-16-2020, 3:30 PM
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sandsnow said;

Quote:
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.


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:
IT IS HEREBY ORDERED that:
1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.

2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.
Please refer to post # 22 of this parallel thread. https://www.calguns.net/calgunforum/....php?t=1621523

SA said;
Quote:
So, ignorance of the law is an excuse?
Only for cops, DAs and other PROTECTED SPECIAL CLASSES.
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  #294  
Old 06-16-2020, 3:56 PM
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Originally Posted by pacrat View Post
sandsnow said;



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.



Please refer to post # 22 of this parallel thread. https://www.calguns.net/calgunforum/....php?t=1621523

SA said;

Only for cops, DAs and other PROTECTED SPECIAL CLASSES.
I read post 22. My feelings exactly.

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?
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  #295  
Old 06-16-2020, 5:25 PM
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So, ignorance of the law is an excuse?
Only if you are a govt agent.
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  #296  
Old 06-16-2020, 5:35 PM
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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:
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.
But the judge is bound by the words of the complaint. The words of the complaint say "On or about January 22." So as stated, the complaint is valid. And the judge has no choice but to overrule the demurrer and let the case continue. So the case went to prelim, bound over at prelim, and hopefully dismissed at arraignment on the information.

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.
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  #297  
Old 06-16-2020, 5:40 PM
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Only if you are a govt agent.
If I may and with all due respect, they got their knee on our necks.
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  #298  
Old 06-16-2020, 5:47 PM
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If I may and with all due respect, they got their knee on our necks.
I can't breathe...
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  #299  
Old 06-16-2020, 6:22 PM
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I kind of want to know why he only had one, who only buys one magazine?
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?
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Old 06-16-2020, 6:27 PM
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Originally Posted by S.A. View Post
If I may and with all due respect, they got their knee on our necks.
Quote:
Originally Posted by ar15barrels View Post
I can't breathe...
And yesterday, SCOTUS, whose sole purpose is to assure that the government doesn't have their collective knee on our neck, and assure that we can FREELY BREATHE.

Made it clear that they JDGAF!
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  #301  
Old 06-16-2020, 6:27 PM
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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:
Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.
People v. Kirk (1989) 211 Cal.App. 3d 58, held that under the then existing law which prohibited "any instrument or weapon of the kind commonly known as a sawed-off shotgun," and the defendant was convicted of two counts because he had two short-barreled shotguns, that "any" meant one or more, so only one conviction was proper. In reaction to Kirk, the Legislature subsequently amended the Penal Code to say that every separate firearm is grounds for a separate count, which is now Penal Code section 23510. However, Penal Code section 23510 only applies to firearms. The logic of Kirk would still apply for magazines absent any statute to the contrary. People v. Rowland (1999) 75 Cal.App.4th 61, applied Kirk to a charge of possession of any deadly weapon in a prison, and found that only one conviction was proper despite three weapons.
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Old 06-16-2020, 6:42 PM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
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:

“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.“

But the judge is bound by the words of the complaint. The words of the complaint say "On or about January 22." So as stated, the complaint is valid. And the judge has no choice but to overrule the demurrer and let the case continue. So the case went to prelim, bound over at prelim, and hopefully dismissed at arraignment on the information.

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.
Thank you for all of this. I’m quoting the entire post in the hope that it inspires EVERYONE to read it carefully if they haven’t already done so.

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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Old 06-16-2020, 8:24 PM
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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...
Thanks very much for your contributions to this discussion.
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Old 06-16-2020, 9:38 PM
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Thank you for all of this. I’m quoting the entire post in the hope that it inspires EVERYONE to read it carefully if they haven’t already done so.

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.“
One dickhead, who IMHO, shouldn't be a cop. Because he admitted he was aware of the Benitez Ruling but chose to ignore it. Named Deputy sheriff Matthew Williams. Created this entire Ch!tStorm and F'd over Mr Yang for Six Months. Costing him jail time, unknown thousands of dollars in Attorney Fees. And likely Bondsman costs.

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.
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Old 06-16-2020, 9:40 PM
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Big relief that this inevitability turned out in our favor for once.
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Old 06-16-2020, 10:10 PM
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Big relief that this inevitability turned out in our favor for once.
At what cost to Mr Yang?

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.
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Old 06-16-2020, 10:13 PM
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I kind of want to know why he only had one, who only buys one magazine?
maybe he was smart and didnt store all his magazines in one place? that way he wont lose everything all in one sweep, he could have more in another cache in an undisclosed location

like the old saying "dont keep all your eggs in one basket" because if you drop the basket you lose all of them.
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Old 06-16-2020, 10:50 PM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
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:


But the judge is bound by the words of the complaint. The words of the complaint say "On or about January 22." So as stated, the complaint is valid. And the judge has no choice but to overrule the demurrer and let the case continue. So the case went to prelim, bound over at prelim, and hopefully dismissed at arraignment on the information.

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.
Did they come up with that date out of thin air?
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Old 06-16-2020, 10:51 PM
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Did they come up with that date out of thin air?
That was the date of the parole check and search and arrest.
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Old 06-17-2020, 8:17 AM
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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.
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Old 06-17-2020, 9:19 AM
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Did they come up with that date out of thin air?
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.
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Old 06-17-2020, 9:22 AM
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This case more or less teaches this proposition.
But with qualified immunity, law enforcement does not HAVE to even care.
They can just shoot first and let their gods sort it out.
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Old 06-17-2020, 9:38 AM
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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.
What if they bought replacement bodies for magazines they legally owned. That would be new dated bodies on old magazines.

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.
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Old 06-17-2020, 9:46 AM
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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.
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Old 06-17-2020, 10:42 AM
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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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One dickhead, who IMHO, shouldn't be a cop. Because he admitted he was aware of the Benitez Ruling but chose to ignore it. Named Deputy sheriff Matthew Williams. Created this entire Ch!tStorm and F'd over Mr Yang for Six Months. Costing him jail time, unknown thousands of dollars in Attorney Fees. And likely Bondsman costs.

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.
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Old 06-17-2020, 10:57 AM
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And I think SCOTUS refusing to revisit Qualified Immunity is about as big or a bigger travesty than them punting on 2A. At least with 2A they don't (yet) have as many bad precedents.
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Old 06-17-2020, 10:59 AM
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That's cool but it misses the point.

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?
I may know next to nothing about legal matters, but I know there is always a trail when it comes to email. That is always tracked, and often legally required to be kept for years after the fact.

Either they got the email, or the AG did not do their duty. How can it be both?
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Old 06-17-2020, 11:07 AM
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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.
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Old 06-17-2020, 11:16 AM
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I may know next to nothing about legal matters, but I know there is always a trail when it comes to email. That is always tracked, and often legally required to be kept for years after the fact.

Either they got the email, or the AG did not do their duty. How can it be both?
It's not the dichotomy that you present.

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.
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Old 06-17-2020, 2:02 PM
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Originally Posted by Rockoutwithyerglockout View Post
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.
While I personally agree with the majority of your opinions of Qualified Immunity. You have a very naive view of what it takes to legally overcome it.

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:
“We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’” …Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim.”

-9th Cir. Court of Appeals


Quote:
The reason? There was no case clearly establishing theft-through-seizure as a constitutional violation in their jurisdiction.
According to the 9th Circus ruling. It is clearly established that IT IS WRONG TO STEAL.

UNLESS IT IS THE COPS THAT ARE STEALING. THEN IT IS OK!
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