People v Tony Diaz Superior Court tosses unlawful carry conviction

[tactic101]

Originally Posted by 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.

What bill is that?

[Elgatodeacero]

…..

[Robotron2k84]

Originally Posted by 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.

SB-918

GMC is just redressed as being a qualified person to obtain a license. All the badness is still in there, just reordered, last I checked.

Linky?

The current markup and legislative digest include:

SB 918, as amended, Portantino. Firearms.
Existing law prohibits a person from carrying a concealed firearm or carrying a loaded firearm in public. Existing law authorizes the sheriff of a county, or the chief or other head of a municipal police department, a licensing authority, as specified, if good cause exists for the issuance, and subject to certain other criteria, criteria including, among other things, the applicant is of good moral character and has completed a specified course of training, to issue a license to carry a concealed handgun or to carry a loaded and exposed handgun, as specified. Under existing law, the required course of training for an applicant is no more than 16 hours and covers firearm safety and laws regarding the permissible use of a firearm.

and

26150. (a) When a person applies for a new license or license renewal to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may shall issue or renew a license to that person upon proof of all of the following:
(1) The applicant is of good moral character. a qualified person to receive such a license, as determined in accordance with the standards set forth in Section 26202.

while 26202 reads:

26202. (a) Unless a court makes a contrary determination pursuant to Section 26206, an applicant shall not be deemed to be a qualified person to receive or renew a license pursuant to Section 26150, 26155, or 26170 if the applicant:
(1) In the last 10 years, has made or committed a threat of violence or act of violence, or used physical force, against another person other than in proportionate self-defense.
(2) In the last 10 years, has made or committed a threat of violence or act of violence toward themselves.
(3) Has been subject to any restraining order, protective order, or other type of court order issued pursuant to the following statutory provisions:
(A) Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(B) Part 4 (commencing with Section 6300) of Division 10 of the Family Code.
(C) Section 136.2.
(D) Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure.
(E) Section 213.5, 304, 362.4, 726.5, or 15657.03 of the Welfare and Institutions Code.
(4) Has been convicted of an offense listed in Section 29805.
(5) Has engaged in an unlawful or reckless use, display, or brandishing of a firearm.
(6) In the last 10 years, has been charged with any offense listed in Section 290, 667.5, 1192.7, 1192.8, or 29805 that was dismissed pursuant to a plea or dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
(7) In the last five years, has been incarcerated in county jail for, or on probation as a result of, a conviction of an offense that involves controlled substances or alcohol.
(8) Is currently abusing controlled substances or alcohol.
(9) Has experienced the loss or theft of a firearm due to the applicant’s lack of compliance with federal, state, or local law or failure to exercise reasonable care in storing, transporting, or securing the firearm.
(10) Has been or is reasonably likely to be a danger to self, others, or the community at large, as shown by an indication from the results of any psychological testing, including, but not limited to, the testing described in subdivision (e) of Section 26190.
(11) Has been convicted of contempt of court under Section 166.
(b) Unless a court makes a contrary determination pursuant to Section 26206, an applicant shall not be deemed to be a qualified person to receive or renew a license pursuant to Section 26150, 26155, or 26170 if the licensing authority determines the applicant otherwise is, has been, or is reasonably likely to be a danger to self, others, or the community at large, or is not a law-abiding, responsible person as demonstrated by anything in the application for a license or through the investigation described in subdivision (c).
(c) In determining whether an applicant is a qualified person to receive or renew a license in accordance with this section, the licensing authority shall conduct an investigation that meets all of the following minimum requirements:
(1) An in-person interview with the applicant.
(2) Interviews with at least three character references, at least one of whom must be a person described in subdivision (b) of Section 273.5, if applicable, and at least one of whom must be the applicant’s cohabitant, if applicable.
(3) A review of publicly available information about the applicant, including publicly available statements published or posted by the applicant.
(d) In determining whether an applicant is a qualified person to receive or renew a license, nothing in this section precludes the licensing authority from relying on factors other than those listed in subdivision (a) or (b) or from engaging in investigative efforts in addition to those listed in subdivision (c).
(e) Upon making the determination of good cause whether an applicant is a qualified person pursuant to Section 26150 or 26155, Section 26150, 26155, or 26170, the licensing authority shall give written notice to the applicant of the licensing authority’s determination. If the licensing authority determines that good cause exists, the applicant is a qualified person, the notice shall inform the applicants applicant to proceed with the training requirements specified in Section 26165. If the licensing authority determines that good cause does not exist, the applicant is not a qualified person, the notice shall inform the applicant that the request for a license has been denied and shall denied, state the reason from the department’s published policy, described in Section 26160, as to why the determination was made. made, and inform the applicant that they may request a hearing from a court, as outlined in Section 26206. A licensing authority providing notice under this subdivision informing the applicant that the request for a license has been denied satisfies the requirement to provide notice of a denial of a license pursuant to Section 26205.

https://leginfo.legislature.ca.gov/f...202120220SB918

All of the bolded is GMC, redressed.

[ΜΟΛΩΝ ΛΑΒΕ]

Originally Posted by Dirtlaw

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

"Defendant was one of three individuals in a vehicle smoking marijuana when they were contacted by law enforcement. Defendant was patted down and a loaded unregistered handgun was found in his waistband. Officer also located a key on defendant's person. The key opened a safe that contained two more firearms. Both were unregistered and one was reported stolen."

[BAJ475]

Originally Posted by ΜΟΛΩΝ ΛΑΒΕ

"Defendant was one of three individuals in a vehicle smoking marijuana when they were contacted by law enforcement. Defendant was patted down and a loaded unregistered handgun was found in his waistband. Officer also located a key on defendant's person. The key opened a safe that contained two more firearms. Both were unregistered and one was reported stolen."

So it appears that possession of a firearm by a prohibited person and possession of stolen property are still possibilities.

[Elgatodeacero]

Penal code 496 possession of stolen property has a “knowingly” element, so that can be hard to prove, and a Fed District Court in Utah just ruled that the federal drug/gun prohibition law is unconstitutional for vagueness,

https://www.calguns.net/calgunforum/....php?t=1807018

so maybe these were the only charges they felt would be reasonably provable?

[SkyHawk]

Originally Posted by BAJ475

So it appears that possession of a firearm by a prohibited person and possession of stolen property are still possibilities.

He had a key to a safe. Unless they can prove no other person in this world had another key to that safe or that someone else never had access to that sole key, then it would seem unlikely they could convict him of possession of stolen property. It seems the property was not actually found on him or with him.

Likely that is why he was not charged with it.

[pacrat]

Well pretty sure Dumb Ch!t is going to jail for related criminal acts.

But at least he can brag on the yard that he won a precedent setting case.

From Wikipedia, the free encyclopedia

Stephen W. "Steve" White[1] (born April 13, 1949 in Sacramento, California)[1] is a Judge of the Sacramento County Superior Court.[2] He served as Presiding Judge for 2010 and 2011. He was appointed to the bench in 2003 by Governor Gray Davis.[3] Between 1999 and 2003, he served as the Inspector General of the California Department of Corrections and Rehabilitation, overseeing California's prison system, and from 2001 to 2003 also served as Special Counsel to the Governor.[4] From 1995 to 1999 he was a partner in the law firm Kronick Moskovitz Tiedemann & Girard. He was the District Attorney of Sacramento County from 1989 to 1995. [5] From 1983 to 1989 he was Chief Assistant Attorney General for California. From 1979 to 1983 he was Executive Director of the California District Attorneys Association. He was deputy and supervising deputy district attorney in Sacramento County from 1974 to 1979. He has been an adjunct professor at the University of California, Davis School of Law since 1996. He received his J.D. from the University of California, Davis School of Law in 1974.

Not your average leftist acolyte UC Davis graduate.

THANK YOU JUDGE WHITE.

[MountainLion]

Originally Posted by pacrat

But at least he can brag on the yard that he won a precedent setting case.

Can you explain how this case sets precedent?

Hint: It does not. Precedent has a legal definition, and you don't seem to know it.

[rewireroy]

Originally Posted by pacrat

Well pretty sure Dumb Ch!t is going to jail for related criminal acts.

But at least he can brag on the yard that he won a precedent setting case.



Not your average leftist acolyte UC Davis graduate.

THANK YOU JUDGE WHITE.

Demurrer judgments dont set precedent and never have. This relates to this individual only although if youre in front of the same judge, its possible that youd recieve the same judgment.

[Foothills]

Originally Posted by pacrat

Well pretty sure Dumb Ch!t is going to jail for related criminal acts.

But at least he can brag on the yard that he won a precedent setting case.



Not your average leftist acolyte UC Davis graduate.

THANK YOU JUDGE WHITE.

The judge did seem to put a surprising amount of effort into something as simple as a demurrer. It almost seemed like he was having fun opening up a Pandora's box. Given that long career, I see why. After a nearly 50-year legal career, it was probably fun to poke the legislature: hey folks, you need to take a close look at this and start taking it seriously.

[pacrat]

Originally Posted by MountainLion

Can you explain how this case sets precedent?

Hint: It does not. PrecedentHUMOR has a legal definition, and you don't seem to know it.

^^^FITY^^^



Well pardon me all to hell Your Royal Pompousness. That comment was "tongue in cheek" Humor. You seem to have missed this little smily suffix.

rewireroy said;

Demurrer judgments dont set precedent and never have. This relates to this individual only although if youre in front of the same judge, its possible that youd recieve the same judgment.

^^^YEAH, I KNOW THAT^^^ I've read the entire thread, and also, didn't fall off a turnip truck on the way to the forum.

And BTW. Your punctuation and spelling are sucky. The apostrophe is on the same key as the "quotation mark". And it is {I before E,,,,,,EXCEPT after C} EXCEPT when it isn't. https://www.amazon.com/Kaimebien-Bef...62044453&psc=1

Good Day

[Tiberius]

Seems like a very well written opinion. My prediction: Newsom and the Legislature will absolutely freak out. They'll claim that now the gutters will run with blood, and so on. The Court of Appeal will somehow stay or reverse. The Cal Supreme Court will agree. And the US Supreme Court will take a hard slap at these courts - and Legislatures - which continue to treat the 2A as a second-class non-right.

As for whether it's "precedent" - I don't pretend to know. The reasoning is strong and applicable to other situations. And it's a final decision, though as I understand it a demurrer presents a very narrow question.

[BAJ475]

Originally Posted by pacrat

^^^FITY^^^

Well pardon me all to hell Your Royal Pompousness. That comment was "tongue in cheek" Humor. You seem to have missed this little smily suffix.

rewireroy said;

^^^YEAH, I KNOW THAT^^^ I've read the entire thread, and also, didn't fall off a turnip truck on the way to the forum.

And BTW. Your punctuation and spelling are sucky. The apostrophe is on the same key as the "quotation mark". And it is {I before E,,,,,,EXCEPT after C} EXCEPT when it isn't. https://www.amazon.com/Kaimebien-Bef...62044453&psc=1

Good Day

Surprised that MountainLion missed that! Sometimes we need to be not so serious and look for the lighter side.

[ar15barrels]

Originally Posted by Tiberius

As for whether it's "precedent" - I don't pretend to know. The reasoning is strong and applicable to other situations. And it's a final decision, though as I understand it a demurrer presents a very narrow question.

No other court will ever reference it if the case is not moved to higher courts.

[rplaw]

Originally Posted by pacrat

I've read the entire thread, and also, didn't fall off a turnip truck on the way to the forum.

I used to have a siggy of:

The last thing I remember was a bump.
A thump.
A cloud of dust.
And the smell of turnips wafting through the air.



One time somebody asked me if that was a line from a song. I took that to mean I'm not the only one whose pockets are filled to overflowing with root vegetables.

[flyer898]

As a former appellate prosecutor at the Mendocino County DA and the CA DOJ, I would counsel against a People's appeal. The upside is you get to try Mr. Diaz before a jury that may not agree with the Peoples's interpretation of the law. The downside is the court of appeal will rule in favor of the defandant in a published decision making CA effectively constitutional carry.
The bill about to be passed solves nothing as it would enact a facially unconstitutional statute.
Look at what is happening in New York with similar legislation intended to circumvent Bruen.

[flyer898]

As a former appellate prosecutor at the Mendocino County DA and the CA DOJ, I would counsel against a People's appeal. The upside is you get to try Mr. Diaz before a jury that may not agree with the Peoples's interpretation of the law. The downside is the court of appeal may rule in favor of the defendant in a published decision making CA effectively constitutional carry.
The bill about to be passed solves nothing as it would enact a facially unconstitutional statute.
Look at what is happening in New York with similar legislation intended to circumvent Bruen.

[p7m8jg]

Originally Posted by Ocdlaw

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

I'm confused, how does double jeopardy not apply to a dismissed criminal conviction?

He was convicted, no? Judge threw it out. Now you think he can be prosecuted again? I'm not sure how from my experience. Can't be convicted twice for the same crime under the double jeopardy clause, is my experience. I'd like to see the DA try....

Unless you're saying double jeopardy doesn't apply to an appeal of a dismissal. That's correct, it doesn't apply at all.

[SkyHawk]

Originally Posted by p7m8jg

Unless you're saying double jeopardy doesn't apply to an appeal of a dismissal. That's correct, it doesn't apply at all.

It was not dismissed, it was a demurrer ruling. The Judge left room to amend the complaint. If the state does not amend within 10 days then the charges will be dismissed.

In civil procedure a demurrer ruling is not appealable but I believe a criminal demurrer ruling is appealable by either side, as are most rulings in a criminal case.

In any event, double jeopardy usually only applies after a conviction or acquittal, which is not the case here.

[DolphinFan]

I think the point to key in on is why the judge sustained the demurrer.
The most important thing I take away from this is:
Shuttlesworth v City of Birmingham AL,
“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…“
If I were the state I would stop making unconstitutional laws because apparently no one has to follow them via Shuttlesworth.
Furthermore, as I’ve said before,
After the incorporation of the 2A, via the 14A, I don’t see where any state has any authority to regulate via the 10A, 2A activity beyond “sensitive places” that are based on TH&T.
My guess is charges are refiled with other charges like prohibited in possession, and possession of a stolen firearm.

[BAJ475]

Originally Posted by DolphinFan

I think the point to key in on is why the judge sustained the demurrer.
The most important thing I take away from this is:
Shuttlesworth v City of Birmingham AL,
“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…“
If I were the state I would stop making unconstitutional laws because apparently no one has to follow them via Shuttlesworth.
Furthermore, as I’ve said before,
After the incorporation of the 2A, via the 14A, I don’t see where any state has any authority to regulate via the 10A, 2A activity beyond “sensitive places” that are based on TH&T.

That is the way it is in Idaho and many other states.

My guess is charges are refiled with other charges like prohibited in possession, and possession of a stolen firearm.

It appears that there could also be a federal prosecution.

[Silence Dogood]

It is a step in the right direction.

[RickD427]

Originally Posted by flyer898

As a former appellate prosecutor at the Mendocino County DA and the CA DOJ, I would counsel against a People's appeal. The upside is you get to try Mr. Diaz before a jury that may not agree with the Peoples's interpretation of the law. The downside is the court of appeal may rule in favor of the defendant in a published decision making CA effectively constitutional carry.
The bill about to be passed solves nothing as it would enact a facially unconstitutional statute.
Look at what is happening in New York with similar legislation intended to circumvent Bruen.

You're very much correct in what you say, but your point only goes to delay the inevitable.

At some point a future defendant is going to demur and and trial court will deny (there's just too many different judges out there for us to assume that they will all be of one mind in handling demurrers). Then that defendant will pursue an appeal that will ultimately lead to the published decision that the state is seeking to avoid.

"Bad news does not improve with time" and responsible government officials will deal with it at an earlier opportunity. I've watched the process for several decades now, and there are predictable ways that elected leaders choose to "fall on their swords." We're hearing the 'Sabre Rattling" of corrective legislation, but (IMHO) there's just too big of a gap between California's agenda and requirements of NYSRPA for any corrective legislation to work. The alternative is to intentionally allow the statues implicated by NYSRPA to become infirm. No legislator has to sign their name to that approach, and it would create a condition of "Constitutional Carry."

That is pretty much what happened when California's "Stop and ID" statute was declared unconstitutional. The wasn't sufficient organizational will for the legislature to enact a compliant replacement law, and there wasn't even enough will to repeal the unconstitutional statute. It remained on the books for more than a decade.

[rplaw]

Originally Posted by RickD427

Y"Bad news does not improve with time" and responsible government officials will deal with it at an earlier opportunity. I've watched the process for several decades now, and there are predictable ways that elected leaders choose to "fall on their swords." We're hearing the 'Sabre Rattling" of corrective legislation, but (IMHO) there's just too big of a gap between California's agenda and requirements of NYSRPA for any corrective legislation to work. The alternative is to intentionally allow the statues implicated by NYSRPA to become infirm. No legislator has to sign their name to that approach, and it would create a condition of "Constitutional Carry."

Unfortunately the California legislature and Governor don't share this view, Gavin having just signed new anti-2A laws designed as an attempt to work around Bruen.

That is going to lead to more litigation which will eventually be California's downfall after the Appeals Court either decides in favor of the 2A or the SCOTUS gets involved again and ends up being even more explicit than they have been already. Either way, we the people win.

[RickD427]

Originally Posted by rplaw

Unfortunately the California legislature and Governor don't share this view, Gavin having just signed new anti-2A laws designed as an attempt to work around Bruen.

That is going to lead to more litigation which will eventually be California's downfall after the Appeals Court either decides in favor of the 2A or the SCOTUS gets involved again and ends up being even more explicit than they have been already. Either way, we the people win.

You may be right, at least for the short term, and that was why I qualified my posting with "responsible government officials."

With the current lot that we have, I would expect a number of attempts to circumvent NYSPRA. We'll have to see how successful those efforts are. I do fear that they will initially have some success in the California courts and at the Ninth Circuit. But at some point, and probably in the long term, we're going to come full circle back to NYSPRA and that's gonna force a change in the statutes. When that day comes, it's gonna be easier for officials to allow the statutes to fall than to enact new ones that are compliant.

[40calfunk]

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

AG Bonta sent the letter on June 24, 2022; Diaz' demurrer was filed on July 25, 2022....so, it's still a licensing scheme whether "good cause" is dropped or not forest for the trees!

After searching the Sacramento County Superior Court's public portal, it looks like all the charges were dismissed the day the demurrer was sustained.

It looks like Judge White boiled down the unconstitutionality, citing Shuttlesworth v. City of Birmingham, of PC 25400/25850 since it creates prior restraint (unconstitutional licensing law).

[SkyHawk]

Originally Posted by 40calfunk

AG Bonta sent the letter on June 24, 2022; Diaz' demurrer was filed on July 25, 2022....so, it's still a licensing scheme whether "good cause" is dropped or not forest for the trees!

After searching the Sacramento County Superior Court's public portal, it looks like all the charges were dismissed the day the demurrer was sustained.

It looks like Judge White boiled down the unconstitutionality, citing Shuttlesworth v. City of Birmingham, of PC 25400/25850 since it creates prior restraint (unconstitutional licensing law).

It looks like two days after the demurrer someone made a motion to dismiss which was granted. I am curious if that motion was from the prosecutor or defense.

Also interesting to note this was handled by a public defender. Very sharp of them to be all over this just after the Bruen decision came out.

[pacrat]

Originally Posted by flyer898

As a former appellate prosecutor at the Mendocino County DA and the CA DOJ, I would counsel against a People's appeal. The upside is you get to try Mr. Diaz before a jury that may not agree with the Peoples's interpretation of the law. The downside is the court of appeal may rule in favor of the defendant in a published decision making CA effectively constitutional carry.
The bill about to be passed solves nothing as it would enact a facially unconstitutional statute.
Look at what is happening in New York with similar legislation intended to circumvent Bruen.

Originally Posted by RickD427

You're very much correct in what you say, but your point only goes to delay the inevitable.

At some point a future defendant is going to demur and and trial court will deny (there's just too many different judges out there for us to assume that they will all be of one mind in handling demurrers). Then that defendant will pursue an appeal that will ultimately lead to the published decision that the state is seeking to avoid.

"Bad news does not improve with time" and responsible government officials will deal with it at an earlier opportunity. I've watched the process for several decades now, and there are predictable ways that elected leaders choose to "fall on their swords." We're hearing the 'Sabre Rattling" of corrective legislation, but (IMHO) there's just too big of a gap between California's agenda and requirements of NYSRPA for any corrective legislation to work. The alternative is to intentionally allow the statues implicated by NYSRPA to become infirm. No legislator has to sign their name to that approach, and it would create a condition of "Constitutional Carry."

That is pretty much what happened when California's "Stop and ID" statute was declared unconstitutional. The wasn't sufficient organizational will for the legislature to enact a compliant replacement law, and there wasn't even enough will to repeal the unconstitutional statute. It remained on the books for more than a decade.

I'm not as learned as either of you in the legal arena.

My own layman's view is that there is a likely strong ....[WRENN v DC] analogy, in the mix.

As in, ...... [we lost, lets not poke the bear and lose even more].

JM2c

[BAJ475]

Originally Posted by SkyHawk

It looks like two days after the demurrer someone made a motion to dismiss which was granted. I am curious if that motion was from the prosecutor or defense.

Also interesting to note this was handled by a public defender. Very sharp of them to be all over this just after the Bruen decision came out.

The criminal defense bar is usually one step ahead of the prosecution. That is what it takes when you are on the dark side and most of your clients are felony stupid.

[lastinline]

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.

That prosecutor may go the route of Vince Foster, and disappear. He could be seen as the legal stain that ruined it for Bonta, and that’s something that won’t be tolerated. He best consider his actions, and his own personal security.

[taperxz]

Licenses to Carry were not part of history or text according to the Thomas opinion. California has a licensing scheme. California can keep this in place without notifying its residents that no licensing is actually needed. Does California have an unenforceable law in place that they’re not required to notify us about? I guess time and cases like this will tell.

Keeping the CCW program may very well keep people from just carrying without the license or knowledge of the right.

Not suggesting intentional test cases just through attrition and how many people arrested for multiple crimes will just have that charge dropped to avoid publicly seeing the result? Of course, non prohibited people that were in possession.

[taperxz]

Licenses to Carry were not part of history or text according to the Thomas opinion. California has a licensing scheme. California can keep this in place without notifying its residents that no licensing is actually needed. Does California have an unenforceable law in place that they’re not required to notify us about? I guess time and cases like this will tell.

Keeping the CCW program may very well keep people from just carrying without the license or knowledge of the right.

Not suggesting intentional test cases just through attrition and how many people arrested for multiple crimes will just have that charge dropped to avoid publicly seeing the result? Of course, non prohibited people that were in possession.

[RickD427]

Originally Posted by taperxz

Licenses to Carry were not part of history or text according to the Thomas opinion. California has a licensing scheme. California can keep this in place without notifying its residents that no licensing is actually needed. Does California have an unenforceable law in place that they’re not required to notify us about? I guess time and cases like this will tell.

Keeping the CCW program may very well keep people from just carrying without the license or knowledge of the right.

Not suggesting intentional test cases just through attrition and how many people arrested for multiple crimes will just have that charge dropped to avoid publicly seeing the result? Of course, non prohibited people that were in possession.

You're on track, but perhaps a bit premature.

Keep in mind that California was not a party to NYSRPA and no California law is directly implicated by NYSRPA.

The act of demurring to a CCW charge in California is wise for the defendant, but it also doesn't really change anything in the law, nor is the outcome of such a pleading assured.

At the risk of being legally imprecise, while trying to be clear, a "demurrer" is legal way of saying "So what, you ain't got nothing here." When a defendant demurs, they're saying that even if everything the nice prosecutor alleges is true, there is no basis for a conviction. If the judge grants the demurrer, then the charges are dismissed. There is no acquittal because the facts of the case are never tested at trial.

In the context of our discussion, the basis for the demurrer is that California's CCW statute is unconstitutional in light of NYSRPA. The Supreme Court didn't hold that in NYSRPA (remember that California was not a party), but when the judge considers the demurrer, the Judge has a duty to consider California's CCW statute in light of NYSRPA. That's the "hook" into California law.

I'll join previous posters in their complements to the Public Defender handling Mr. Diaz's case. The demurrer tactic was very wise, and if more broadly pursued, will bring a quick end to California's CCW statute without need of a lawsuit. Mr. Diaz may be a real schmuck, but he has a very talented Public Defender. I'll also take this occasion to repeat comments that I made in other threads that Public Defenders tend to be very good lawyers, despite their commonly held reputation. Throughout my career, Public Defenders did a much better job of testing my cases than did private attorneys.

The reason that you may be premature is that a successful demurrer action in a trial court only benefits the defendant. There is no legal precedent and the judge in any other court could decline to grant a demurrer request based on the same facts. But eventually one of the cases will go to appeal, and this is the type of case where the appellate court is likely to publish their decision.

In the event that a published appellate court decision holds the CCW statute to be unconstitutional, the state has no duty to publicize that outcome, or to repeal the CCW statute. A final appellate decision that the law is unconstitutional would render that law void, but that's about it. When our "Stop and ID" statute was declared unconstitutional, it was kept on the books (without having any legal effect) for more than a decade.

[pacrat]

Rick said:

In the context of our discussion, the basis for the demurrer is that California's CCW statute is unconstitutional in light of NYSPRA. The Supreme Court didn't hold that in NYSPRA (remember that California was not a party), but when the judge considers the demurrer, the Judge has a duty to consider California's CCW statute in light of NYSPRA. That's the "hook" into California law.

Which highlights the absolute beauty of the "THT" finding in Bruen. It fails to mention ANY, of the 20,000 PLUS firearm laws passed in the last 200 yrs.

But it directly affects any/all 2A related ongoing cases already filed, and ALL future cases going forward. And is the "foot in the door" for refiling past cases.

IT KICKED THE LOWER COURT FABRICATED TWO STEP CRUTHCES OUT FROM UNDER ALL PREVIOUS INFRINGEMENTS.

In the context of several side discussions, as to why folks are calling this landmark ruling "BRUEN". Even most legal scholars.

It's easier to type. And harder to misspell. As was done 5 times in just the previous post.

[RickD427]

Originally Posted by pacrat

Rick said:



Which highlights the absolute beauty of the "THT" finding in Bruen. It fails to mention ANY, of the 20,000 PLUS firearm laws passed in the last 200 yrs.

But it directly affects any/all 2A related ongoing cases already filed, and ALL future cases going forward. And is the "foot in the door" for refiling past cases.

IT KICKED THE LOWER COURT FABRICATED TWO STEP CRUTHCES OUT FROM UNDER ALL PREVIOUS INFRINGEMENTS.

In the context of several side discussions, as to why folks are calling this landmark ruling "BRUEN". Even most legal scholars.

It's easier to type. And harder to misspell. As was done 5 times in just the previous post.

Pacrat,

1) Touche

2) Fixed

This all because I've done a ton of work with California's Public Records Act and the "PRA" thing is pretty well fixed in my brain and my brain is usually (but not always) connected to my typing fingers.

I still prefer the use of NYSRPA as the short reference to NYSRPA v Bruen, primarily because Mr. Bruen, in his official capacity, is a frequent defendant in civil cases.

[pacrat]

Originally Posted by RickD427

Pacrat,

1) Touche

2) Fixed

This all because I've done a ton of work with California's Public Records Act and the "PRA" thing is pretty well fixed in my brain and my brain is usually (but not always) connected to my typing fingers.

I still prefer the use of NYSRPA as the short reference to NYSRPA v Bruen, primarily because Mr. Bruen, in his official capacity, is a frequent defendant in civil cases.

Couldn't resist the spelling thing. All in fun. Just cause I'm me. Hell, on occasion I even pick on myself. Just for practice.

No matter how many cases he is listed as a defendant. Past, Present, or Future. NONE will ever illicit the immediate recognition as his WORLDWIDE RECOGNIZABLE, PRECEDENT SETTING, SCOTUS SPANKING. .

[Chewy65]

There is probably a reason I was never what one would call a successful attorney, but I disagree with all of you when it comes to citing trial court decisions. Where you err is by citing trial level decisions as binding authority. If the only decisions be that of other trial courts, I see nothing wrong with citing them as authority as long as you make it clear that you are citing non-binding trial level authority. In fact, you do your client poor service if you fail to bring it up and that other decision be a well reasoned one of a well respected bench.

[Foothills]

Originally Posted by Chewy65

There is probably a reason I was never what one would call a successful attorney, but I disagree with all of you when it comes to citing trial court decisions. Where you err is by citing trial level decisions as binding authority. If the only decisions be that of other trial courts, I see nothing wrong with citing them as authority as long as you make it clear that you are citing non-binding trial level authority. In fact, you do your client poor service if you fail to bring it up and that other decision be a well reasoned one of a well respected bench.

Decisions in other appeals court circuits are not binding on the other appeals courts either. But they are frequently cited as that can be a good way to say, "Hey, look at this thoughtful approach. We should do the same thing.

That's basically what everyone citing CAETANO is doing.

[jimmykan]

Just kidding, I think this is a good development.