People v Tony Diaz Superior Court tosses unlawful carry conviction

[Mulamu]

In Sacramento County yesterday, Judge Steve White sustained a demurrer to 4 felony firearm charges, including 3 alleged violations of PC 25400 (a)(3) and one alleged violation of PC 25850(a). Defendant filed a demurrer asserting that in light of the U.S. Supreme Court case (New York State Rifle & Pistole Assoc., Inc. v Bruen)(2022) 142 S. Ct. 2111, violations of PC 25400 and 25850 are no longer public offenses ( PC 1004(4)). Bruen invalidates California’s concealed carry licensing statutes (PC 26150 and 26155), meaning individuals can no longer be punished for concealed carry of a firearm.

People v. Tony Diaz Case No. 21 FE019850

Here is a link to the decision:

https://www.hipdf.com/download-file?...gqzm4JGJdHdrOw

"At the time of defendant's arrest California provided one legal means by which an individual could exercise their right to public carry- to get a license under section 26150. That path was unconstitutional. According to Shuttlesworth, faced with an unconstitutional restriction on his constitutional right, defendant was free to engage "with impunity in the exercise of the right. .. "

[nedro]

In layman's terms; Does this mean that if you have the means to lawyer up, you can conceal carry with impunity?

[BobB35]

So wait this ruling effectively says that the CA law on permitting is unconstitutional because of Breun, therefor in order to comply with Bruen the state is effectively constitutional carry.

I guarantee you the legislators have no idea this happened.

[Dirtlaw]

It's a Superior Court decision on demurrer. It can't be cited. However, it is a positive.

[rplaw]

Originally Posted by BobB35

So wait this ruling effectively says that the CA law on permitting is unconstitutional because of Breun, therefor in order to comply with Bruen the state is effectively constitutional carry.

I guarantee you the legislators have no idea this happened.

No.

What it means is that the State was unprepared or unable to rebut the Defendant's 2nd Amendment claims so the judge had no choice except to dismiss the charges.

That's it. It's nothing more than if you'd beaten the rap for a speeding ticket. Doing that doesn't invalidate the vehicle code.

[Ocdlaw]

This is really wild!

[Dirtlaw]

Does the State have the bxlls to take it further?

[RickD427]

Originally Posted by nedro

In layman's terms; Does this mean that if you have the means to lawyer up, you can conceal carry with impunity?

Originally Posted by BobB35

So wait this ruling effectively says that the CA law on permitting is unconstitutional because of Breun, therefor in order to comply with Bruen the state is effectively constitutional carry.

I guarantee you the legislators have no idea this happened.

This doesn't change anything regarding California's laws on CCW, or Carrying a Loaded Weapon.

This decision only affects Mr. Diaz, and nobody else. It does have the potential to apply to others should the state appeal the decision, the Appellate Court upholds, and the Appellate Court opts to publish the decision, but that ain't happened yet.

The prosecutor has ten days to remedy the shortcomings that the judge found. We'll have to see if he/she/it/other makes an attempt to do so.

[Elgatodeacero]

i dont think rplaw has read the decision.

it is only 10 pages long, and it is only a trial court decision, but it pretty comprehensively addresses all the State's relevant arguments and finds them lacking. I dont see how the prosecution can remedy the defects, since these are not pleading defects but rather the court finds the entire carry permit scheme unconstitutional under Bruen.

I would not carry concealed or openly based on this trial court decision, but the writing is on the wall and we will have an appellate decision soon enough.

It seems clear the criminal cases will define the right to carry much quicker than civil cases due to fewer procedural hurdles for criminal defendants and the right to speedy trial.

[Spanky8601]

Originally Posted by Elgatodeacero

i dont think rplaw has read the decision.

it is only 10 pages long, and it is only a trial court decision, but it pretty comprehensively addresses all the State's relevant arguments and finds them lacking. I dont see how the prosecution can remedy the defects, since these are not pleading defects but rather the court finds the entire carry permit scheme unconstitutional under Bruen.

I would not carry concealed or openly based on this trial court decision, but the writing is on the wall and we will have an appellate decision soon enough.

It seems clear the criminal cases will define the right to carry much quicker than civil cases due to less procedural hurdles for criminal defendants and the right to speedy trial.

Got it. In Two Weeks.

[BAJ475]

Originally Posted by BobB35

So wait this ruling effectively says that the CA law on permitting is unconstitutional because of Breun, therefor in order to comply with Bruen the state is effectively constitutional carry.

I guarantee you the legislators have no idea this happened.

Yes and it's reasonable to conclude that once they discover what happened while they were busy trying to figure out how to screw the gun community, they and the Governor and the AG will be changing their underwear! From may issue to permitless carry in one step. How about that!

[nedro]

Originally Posted by BAJ475

Yes and it's reasonable to conclude that once they discover what happened while they were busy trying to figure out how to screw the gun community, they and the Governor and the AG will be changing their underwear! From may issue to permitless carry in one step. How about that!

Are they moving to Idaho?

[Foothills]

And the legislature is so committed to de-criminalizing marijuana that they would need to pass clarifying legislation that carrying a firearm while consuming alcohol or drugs is prohibited. Many shall issue states have such prohibitions.

[DolphinFan]

Congratulations to the Judge who actually read the Bruen Decision.

Because the decision says:

"

[June 23, 2022]

Justice Thomas delivered the opinion of the Court.

 In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home."

https://www.law.cornell.edu/supremec...-843_OPINION_4

I look forward to more decisions like this and Constitutional Carry across the nation with the Constitution as our permit.

[BAJ475]

Originally Posted by nedro

Are they moving to Idaho?

I doubt it because unlike CA there are no state NFA restrictions in Idaho. So while you are getting closer to being free, CA still has a way to go.

Edit. One other thing. Marijuana is illegal in Idaho!

[bohoki]

i think it only means at the time of his arrest the concealed carry requirements were unconstitutional now that the AG sent out letters to ignore "good cause" you cant use that arguement if you are arrested today

of course the prescident of them leaking ccw information online should invalidate the whole ccw system of the state since they have proven to be careless

[nedro]

Originally Posted by BAJ475

I doubt it because unlike CA there are no state NFA restrictions in Idaho. So while you are getting closer to being free, CA still has a way to go.

Edit. One other thing. Marijuana is illegal in Idaho!

That was a joke about your permit-less carry in California comment. It was not intended to be a slight on Idaho.

[BAJ475]

Originally Posted by bohoki

i think it only means at the time of his arrest the concealed carry requirements were unconstitutional now that the AG sent out letters to ignore "good cause" you cant use that arguement if you are arrested today

of course the prescident of them leaking ccw information online should invalidate the whole ccw system of the state since they have proven to be careless

Go back and read the order. The judge referred to the AG's memo but it made no difference because the good cause requirement is not the only problem with the licensing scheme.

[Squatch]

This is going to have huge implications on a lot of cases.

Including gun enhancements on crimes.

Sent from my SM-G950U using Tapatalk

[BAJ475]

Originally Posted by nedro

That was a joke about your permit-less carry in California comment. It was not intended to be a slight on Idaho.

I know that. I was just going along.

[Elgatodeacero]

The AG’s letter telling sheriffs to not use the good cause requirement has zero affect on the issue, because the statute remains unchanged. A letter from the AG cannot make an unconstitutional statute somehow Constitutional.

[Dirtlaw]

Originally Posted by Squatch

This is going to have huge implications on a lot of cases.

Including gun enhancements on crimes.

Sent from my SM-G950U using Tapatalk

The problem is it can't be cited unless you cheat in some fashion. And that may end up worse than the cure.

[Ocdlaw]

Originally Posted by Elgatodeacero

i dont think rplaw has read the decision.

it is only 10 pages long, and it is only a trial court decision, but it pretty comprehensively addresses all the State's relevant arguments and finds them lacking. I dont see how the prosecution can remedy the defects, since these are not pleading defects but rather the court finds the entire carry permit scheme unconstitutional under Bruen.

I would not carry concealed or openly based on this trial court decision, but the writing is on the wall and we will have an appellate decision soon enough.

It seems clear the criminal cases will define the right to carry much quicker than civil cases due to fewer procedural hurdles for criminal defendants and the right to speedy trial.

But double jeopardy doesn't apply so the DA can appeal the dismissal if they want.

[Elgatodeacero]

It is the reasoning and argument that are important, not whether the case is citable controlling authority.

DA’s around the state will be facing identical motions in every gun case and either a defendant will lose and appeal or the DA will lose and appeal. The issue cannot be ignored much longer.

[Foothills]

Wow, the judge even cites the pending SB 918.

I know that we are in the habit of thinking about Constitutional wins being a product of civil litigation by the NRA, CRPA, etc. But there are tons of Supreme Court landmark cases that stem from criminal prosecutions.

Caetano is a good example. The Court didn't quite strike down the stun-gun law. But they did say, "How dare you try to enforce that law against a woman who did everything right and was still threatened." It puts all future enforcement activity for that law in doubt.

This judge clearly was doing the same thing. This is written to challenge the notion of whether the California licensing scheme is enforceable as written. The judge concludes that it is not. It's just one judge, subject to appeal. I'm sure there will be an appeal.

So it's not unlike the stay in Duncan. The "law" still says possession of magazines that carry more than 10 rounds is unlawful. But that law cannot be enforced at this time.

[Dirtlaw]

Originally Posted by Elgatodeacero

It is the reasoning and argument that are important, not whether the case is citable controlling authority.

DA’s around the state will be facing identical motions in every gun case and either a defendant will lose and appeal or the DA will lose and appeal. The issue cannot be ignored much longer.

I agree! Good argument can be duplicated and should be. But it is NOT precedent (not authority). And that is a bit of a killer if you are writing the brief. You make the same arguments and hope the judge sees the light. But he may not.

[randomBytes]

the judge told them how to fix it - charge him with possession of stolen gun

[RickD427]

Originally Posted by Foothills

Wow, the judge even cites the pending SB 918.

I know that we are in the habit of thinking about Constitutional wins being a product of civil litigation by the NRA, CRPA, etc. But there are tons of Supreme Court landmark cases that stem from criminal prosecutions.

Caetano is a good example. The Court didn't quite strike down the stun-gun law. But they did say, "How dare you try to enforce that law against a woman who did everything right and was still threatened." It puts all future enforcement activity for that law in doubt.

This judge clearly was doing the same thing. This is written to challenge the notion of whether the California licensing scheme is enforceable as written. The judge concludes that it is not. It's just one judge, subject to appeal. I'm sure there will be an appeal.

So it's not unlike the stay in Duncan. The "law" still says possession of magazines that carry more than 10 rounds is unlawful. But that law cannot be enforced at this time.

And I'm pretty sure that you're correct, and that is a good thing.

This decision, at the moment only applies to Mr. Diaz. I'm sure that many other similarly situated defendants will make the same maneuver, and if they do, the outcome will only apply to those defendants (and there is no assurance that their trial courts will reach the same decision), but once there is a published decision from the California Court of Appeals, there will be a statewide precedent set.

[Robotron2k84]

PP5

18 If the regulation is not constitutional, then the state returns to the default
19 position - that public carry is legal at least until the unconstitutional portions of the licensing
20 scheme are excised or amended. The People's arguments do not counter this conclusion.

Key phrases.

Currently, the CA carry regime is unconstitutional WRT NYSRPA, and without an objective, time-limited, test for whatever GMC might be. GMC itself may be unconstitutional, but yet still may be upheld if it is rendered via objective means.

I have held this view, since NYSRPA, but not made it vocal: Until CA comes into compliance with NYSRPA, you do not need a permit to carry, or rather that you can not be held to a crime by simply exercising your rights.

.

[Dirtlaw]

Originally Posted by RickD427

And I'm pretty sure that you're correct, and that is a good thing.

This decision, at the moment only applies to Mr. Diaz. I'm sure that many other similarly situated defendants will make the same maneuver, and if they do, the outcome will only apply to those defendants (and there is no assurance that their trial courts will reach the same decision), but once there is a published decision from the California Court of Appeals, there will be a statewide precedent set.

Yes. But if you are the State of California, do you take a writ or later an appeal, or do you let the decision die in the dust of time?

[Foothills]

Originally Posted by randomBytes

the judge told them how to fix it - charge him with possession of stolen gun

Yep, that part was really interesting. They can charge the defendant with other violations. If they hadn't decriminalized marijuana, driving while under the influence would be a logical option.

I like the part about how the "Court does not relish" the implications. The likely immediate outcome is that DAs simply won't charge for public carry without a permit for a while. They can always select something else. Plenty of things are illegal in California.

If it was San Francisco, L.A. or Ventura they might appeal the public possession. But in Sacramento, it will be much easier to simply file different charges.

[ΜΟΛΩΝ ΛΑΒΕ]

I'm not surprised, but I am dissappointed by how Firearms Policy Coalition is already trying to fundraise on this and saying they're responsible, when the attorneys involved in this case were from the Sacramento County Public Defender.

[ar15barrels]

Originally Posted by RickD427

This doesn't change anything regarding California's laws on CCW, or Carrying a Loaded Weapon.

This decision only affects Mr. Diaz, and nobody else. It does have the potential to apply to others should the state appeal the decision, the Appellate Court upholds, and the Appellate Court opts to publish the decision, but that ain't happened yet.

The prosecutor has ten days to remedy the shortcomings that the judge found. We'll have to see if he/she/it/other makes an attempt to do so.

Will that prosecutor get a call from Bontas tribe telling him to let it go and not push for appeal?
Seems like this could go very poorly for CA state laws if run up through appeals process and turned into an actual decision with merit.

[Elgatodeacero]

Wait until SB 918 passes and is also ruled unconstitutional under Bruen………

[RickD427]

Originally Posted by Dirtlaw

Yes. But if you are the State of California, do you take a writ or later an appeal, or do you let the decision die in the dust of time?

Originally Posted by ar15barrels

Will that prosecutor get a call from Bontas tribe telling him to let it go and not push for appeal?
Seems like this could go very poorly for CA state laws if run up through appeals process and turned into an actual decision with merit.

Those are excellent strategy questions. I can't really predict how the state will proceed, there is no really good path for the state to follow.

If the state does nothing, then it's really only a matter of time until every CCW defendant also demurrs to the charge(s). At that point the law effectively becomes useless and public pressure is gonna mount on the legislature to do something.

If the state appeals and loses, then once the matter is final, the CCW and Carrying while loaded statutes become void (Marbury v Madison). That effectively would make California a "Constitutional Carry" state unless the legislature passes a new statute that meets constitutional requirements.

Looking at the arguments, I don't see much possibility of the state winning an appeal.

The state is gonna have a hard time passing such a new statute. There's simply too much political pressure to keep a strict regimen in place and I don't see how that can be made to work under NYSPRA.

The last time the state had a roughly similar case was when out "Stop and ID" statute was ruled unconstitutional. The legislature could not reach agreement on a new statute, and could not agree to repeal the infirm statute.

[TruOil]

NRA-ILA posted the most recent mark up of the new CCW law that will be passed shortly. Just one point about it (of many that could be made), not only is good cause gone, BUT SO IS GOOD MORAL CHARACTER. That right their wipes out Bontas screed trying to except Bruen into oblivion. I haven't had time to read all the details (it is a long bill), but that is at least one positive. Also, you do NOT have to say why you want to carry. You just have to be 21 and lawfully allowed to possess firearms.

[ΜΟΛΩΝ ΛΑΒΕ]

Originally Posted by ar15barrels

Will that prosecutor get a call from Bontas tribe telling him to let it go and not push for appeal?
Seems like this could go very poorly for CA state laws if run up through appeals process and turned into an actual decision with merit.

As a prosecutor, why appeal a dismissal of some charges, when you can charge for other offenses also committed, such as receipt of stolen property, and still get a conviction from the same incident?

[Dirtlaw]

Originally Posted by ΜΟΛΩΝ ΛΑΒΕ

As a prosecutor, why appeal a dismissal of some charges, when you can charge for other offenses also committed, such as receipt of stolen property, and still get a conviction from the same incident?

Have not read the facts. But this post rings true.

[SkyHawk]

All legal caveats aside... still deserves a "Wow!"

How many people who have been convicted for illegal carry and only illegal carry are going to line up with appeals in hand now? My guess is the floodgates will open - and perhaps this thing will eventually become case law one way or another

[rewireroy]

Originally Posted by bohoki

i think it only means at the time of his arrest the concealed carry requirements were unconstitutional now that the AG sent out letters to ignore "good cause" you cant use that arguement if you are arrested today

of course the prescident of them leaking ccw information online should invalidate the whole ccw system of the state since they have proven to be careless

Good moral character is still on the requirements list and that is as subjective as a good cause requirement.

Per Bruen, California (and the other states listed) will only have a constituionally sound licensing scheme when it fall into line with the states schemes that are Shall Issue and also follows the same framework about prohibited places.