|
Greg Fleniken, a landman for the company he co-owned with his brother, traveled a lot for work. When his body was found on the floor of a locked hotel room, cigarette in hand, a small wound on his scrotum and rug-burn on his cheek, but no other signs of injury, the police were initially baffled. And after the autopsy, things got weirder. The medical examiner found damage to numerous internal organs and two broken ribs, the type of injuries consistent with being beaten or crushed, yet Fleniken didn't have a bruise to be found. Announcing that Fleniken probably bled internally to death just a few minutes as a result of these injuries, the medical examiner ruled the death a homicide.
The police began an investigation which uncovered the following facts:
The investigation seemed to hit a dead end. ...Until the family hired a PI. When the PI and the police returned to the hotel room, the PI noticed a small hole in the wall of the room, and later they discovered another corresponding hole in the wall of the adjacent room, patched up with toothpaste. When the police lined the two holes up, they reasoned that the holes might mark the trajectory of a bullet which had gone through the wall in the electricians’ room and exited in Fleniken’s. Using a laser, the police determined that a bullet on that trajectory would have struck Fleniken bed: the bed where he had likely been laying watching TV. This discovery led the police to start investigating the hotel neighbors that night, men who were coworkers, in town on electrician business unrelated to Fleniken's. With this new lead, the police followed up with the men who had been in the neighboring room that night. Two of the three men cooperated with the police and Fleniken's family finally got some answers. Apparently, the three men had all been drinking and when the alcohol in the room ran out, one man sent another down to his car to retrieve more alcohol and--for reasons unknown--his gun. When the second man returned with both items, the first took the gun, and playfully pointed the gun at the others, at which time the gun accidentally discharged, barely missing his friends. None of the men checked the room next door to see if the story bullet had caused any damage, opting instead, to head down to the hotel bar and pretend nothing had happened. ...But when one of them saw a gurney being rolled out of the hotel the next morning, they knew something had gone horrible wrong the previous night. The final conclusion reached by the police: while Fleniken was laying on the bed, the bullet came through the wall, hit him in the scrotum and then bounced around inside his body, ricocheting off his ribs shredding his internal organs, and causing massive internal bleeding. The shooter ultimately pled no contest to manslaughter, and was sentenced to 10 years in prison. On June 11, the Beerfest in Santa Rosa returned to the Luther Burbank Center after a 2-year hiatus following the COVID lockdowns. More than 40 breweries came out to share their beers, ciders and kombucha. ...And Devina was there to answer any questions the attendees had about DUIs, and defending against criminal charges of DUI. But while that sounds pretty boring, attendees also got to play the "Guess Your BAC" game. The high this year? 0.31. It was great to get out there to connect with folks before they became involved in the criminal justice system.  In these times of increasing complaints against members of the law enforcement (LE) community, California is taking further measure to increase transparency, and help pluck out the “bad apples” within the that community through the passage of SB 2 late last year. This change in the law comes, perhaps, in large part in response to the number of stories of law enforcement gangs we’ve seen of late, with officers systematically taking advantage of their positions of authority. [1] While these gangs have been reported to be primarily located in the Greater LA area, such gangs have also been identified in Northern California.[2]
As part of holding law enforcement accountable, those who have felt wronged by law enforcement have long been eligible to file a civil lawsuit for damages under the “Tom Bane Civil Rights Act, which states that if a LE member, “whether or not acting under color of law,” interferes or attempts “to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of any rights secured by …[the law]” those injured are “authorized to bring a civil action for equitable relief and a civil penalty.”[3] That said, “public employees are not liable for injury caused by their instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if they act maliciously and without probable cause.”[4] Further, there is also a lot of protection, shielding LE departments from such claims. For example, under the Government Claims Act, unless a statute provides otherwise, “a public entity is not liable for injury, whether such injury arises out of an act or omission of the public entity or a public employee.... However, a public entity is liable for injury proximately caused by an act or omission of an employee within the scope of their employment if the act or omission would otherwise have given rise to a cause of action against that employee.[5] So what can be done when bad officers are polluting the officer pool? Let’s go after LE Officers’ ability to actually be qualified to perform their jobs! Even prior to this change in law created via SB 2, both the Penal and Government Code required certain minimum training and moral character requirements for peace officers, and established some disqualifying factors for employment as a peace officer, such as having a felony conviction on their record. A large portion of this “minimum training” involved training and certification through the Commission on Peace Officer Standards and Training (POST,) which develops training courses and curriculum, and establishes a professional certificate program that awards different levels of certification based on training, education, experience, and other relevant prerequisites. While POST was allowed to cancel a certificate that was awarded in error or fraudulently obtained, it was prohibited from canceling or revoking a properly-issued certificate. …So it was hard to sue law enforcement, and even harder to get an officer fired. Out here in the civilian world, one of the problems many in the community faced in trying to seek justice following an encounter with an out of control LE officer involved trying to get the personnel records and other such records of potential misconduct as such records were considered confidential. In recognition of the need for more serious measures through which to hold law enforcement accountable, SB 2 now (1) requires POST to adopt a definition of “serious misconduct” to serve as the criteria to be considered for ineligibility for—or revocation of—certification, (2) grants POST the power to investigate and determine the fitness of any person to serve as a peace officer, and to audit any law enforcement agency that employs peace officers without cause at any timeby (3) creating and empowering a new division to investigate and prosecute proceedings to take action against a peace officer’s certification. To lay the groundwork for what will be deemed “serious misconduct” the bill sets out a number of criteria which will automatically be included:
Further, the bill eliminated specified immunity provisions for peace and custodial officers, or public entities employing peace or custodial officers sued under the Tom Bane Civil Rights Act. Lastly, and perhaps most importantly in this era of desired transparency, the bill made it so all records related to the revocation of a peace officer’s certification are public and requires that records of an investigation be retained for 30 years. With any luck, the passage and adoption of this change in law will help keep the credibility of law enforcement above reproach, and keep us all safer as a result. __________ [1] See “Los Angeles Deputy Says Colleagues are Part of Violent Gang” Dazio, NBC, August ,4 2020, available at: https://www.nbclosangeles.com/news/local/gang-los-angeles-county-sheriffs-deputies-executioners-compton/2407924/, [as of April 21, 2021].), _“In L.A. County, Gangs Wear Badges” Cheney-Rice, New York Magazine, September 4, 2020, https://nymag.com/intelligencer/2020/09/l-a-county-sheriffs-department-has-a-gang-problem.html, [as of April 21, 2021,] and “Los Angeles Sheriff's deputies say gangs targeting "young Latinos" operate within department” https://www.cbsnews.com/news/los-angeles-sheriffs-deputies-gangs-young-latinos/, [as of April 21, 2021]. [2] “Vallejo Police Launch Independent Probe Into ‘Badge Bending' Allegations,” NBC Bay Area, July 31, 2020, available at: https://www.nbcbayarea.com/news/local/north-bay/vallejo-police-launch-independent-probe-into-badge-bending-allegations/2336588/, [as of April 21, 2021]. [3] Civil Code Section 52.1. [4] (Government Code Section 821.6.) [5] Government Code Section 814 et seq.) It’s a basic tenet of our fundamental fairness within our criminal justice system that a criminal defendant needs to be competent to assist in his or her own defense. Because of this, California has long held that a person cannot be tried or “adjudged to punishment while that person is mentally incompetent.” Should the judge, prosecutor or defense attorney have a basis for believing the defendant is not competent to stand trial, a procedure has been put in place wherein criminal proceedings are suspended while the defendant is evaluated for competency, the underlying issues are identified, and, wherever possible, restored to competency. Prior to 2022, this restoration to competency was legally allowed to include involuntary antipsychotic medication in all cases.
After the passage of SB 317, however, the portion of the law regarding the restoration of competency for a person charged with a misdemeanor or a violation of probation for a misdemeanor has been repealed, including the provisions regarding administration for antipsychotic medication. Instead, the court is still authorized to have the defendant evaluated for competency, but now must either grant mental health diversion or dismiss the charges if the defendant is found to be incompetent and cannot be restored to competence without involuntary medication. If the person can be restored to company through counseling or voluntary medication, the court is to refer the defendant for evaluation by the County Public Health Director for “a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or committed to a treatment facility.” SB 317 also assures that anytime the defendant spends in a mental health treatment facility pending their return of mental competency are credited against any potential jail sentence at the same rate other “good conduct credits” are awarded for time spent in “confined in or committed to a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp.” Often when a person digs into the reasoning behind the enactment of any certain law, they find a solid, commonsense reason which justifies a limitation of the citizenry’s freedom. …But sometimes the reason just makes you laugh. According to an article published in LA Weekly in 2012, California criminalized the possession of nunchucks (as defined in Penal Code section 16940 as “an instrument consisting of two or more sticks, clubs, bars, or rods to be used as handles, connected by a rope, cord, wire, or chain, in the design of a weapon used in connection with the practice of a system of self-defense such as karate”)—to the tune of making it a felony—in 1974 in response to the sudden rise in the public’s interest in martial arts films, noting that at that time “the United States was in the kung-fu grip of a martial arts craze. Sparked by the 1973 release of Bruce Lee's Enter The Dragon and spurred by such pop phenomena as the TV series Kung Fu and the song “Kung Fu Fighting,” martial arts fever was spiking, along with a faddish interest in martial arts weapons.
“Menaced by the trend, Newsweek published a sensational article on nunchucks, called “Killing Sticks.” The article's alarm bells prompted lawmakers around the country to contemplate bans, but only New York, Massachusetts, Arizona and California followed through, with then-Gov. Ronald Reagan signing California's bill into law.” The following year, a small exception was carved out of the law, allowing the possession of the “weapons” at a martial arts academy. In 2022, however, via the passage of SB 827, California finally did away with the prohibition of the possession of these “weapons” be removing reference to nunchaku in the list of “generally prohibited weapons” within the state and from the list of crimes from which a Plaintiff may bring an action of enjoin as being a nuisance. If you are being charged with a weapons-based offense in the Northern San Francisco Bay Area and need to consult with an attorney, feel free to reach out to Devina. Rape is acknowledged by all as a crime of violence that harms the victim both physically and psychologically. However, here in California, prior to a recent amendment to the law, AB 1171, California was one of just eleven states that distinguished “spousal rape” from “rape” so rapists who were convicted of spousal rape law faced less severe sentences. "When spousal rape is not treated as seriously as other forms of rape, it invalidates the victims' traumatic experiences and continues to promote rape culture. Moreover, a rapist should not be shielded from punishment simply because the rapist is married to the victim,” writes the author of the bill, Cristina Garcia.
2022’s enactment of AB 1171 worked to repeal the provision of Penal Code section 262, rooted in antiquated views that wives were the property of their husbands, which differentiated between “rape’ and “spousal rape,” which means that a defendant convicted of raping a spouse will now face a mandatory prison sentence and be required to register as a sex offender. This change is lauded by a wide variety of groups, including the National Coalition Against Domestic Violence (NCADV), which found that between 10-14% of married women have been or may experience rape by their spouse, and that 18% of these victims state their children have witnessed the rape. “Rape is rape, regardless of the relationship between the rapist and a victim,” says co-author Senator Dave Cortese (D-San Jose). “The idea that marital rape should be punished less severely is absurd and this legal loophole can’t continue to be ignored.” If you’ve been charged with a crime of sexual violence and wish to consult with Devina about your case, you can reach her here. Under California a law, “A mistake of fact that disproves the required intent for a crime" can amount to a defense against alleged criminal responsibility if the defense can raise a reasonable doubt regarding the existence of an element negated by mistake of fact. For a specific crime such as theft, the mistaken belief need only be an actual belief, and need not be reasonable. Recently, in People v. Speck, the California Courts have taken another look at this law, affirming that where (1) there is substantial evidence supporting the mistake of fact defense, and (2) the defense asks that the jury be instructed on the Mistake of Fact defense, the judge must give the relevant jury instruction. In Speck, the defendant was arrested after he was found to be driving a stolen car. At the trial, he testified that he had borrowed the car with permission from the person he beleived owned the car. The defense of mistake of fact requires, at a minimum, an actual belief “in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act. For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. So what happens if you make a mistake about a fact that is relevant to your criminal charges because you were intoxicated. Whether you can use the defense will ultimately come down to whether you were voluntarily or involuntarily intoxicated. Voluntarily intoxicated? You will not be able to use the defense. But Involuntarily intoxicated? You might. If you have any questions about whether a Mistake of Fact defense may help your case, feel free to contact Devina. As we as a society evolve, we hope that our laws evolve as well. Enacted as of January 1, 2022, California passed a law which helps to offer a little leniency in sentencing for defendants who suffered certain traumas.
Our law has long allowed for defendants to enter into a plea bargain, accepting responsibility for their criminal conduct, and in exchange, the prosecutor or judge will make certain promises, commitments, concessions, assurances, or give the case certain considerations. That said, previously, working within California’s relatively rigid sentencing scheme, judges often lacked the discretion to impose a sentence which adequately addressed these underlying factors where vulnerable populations were involved. AB 124 aimed to address this problem. Following the passage of AB 124, the legislature has directed that the court must now impose the low term prison sentence when the defense submits acceptable proof (1) of childhood trauma, (2) they were a victim of human trafficking, or (3) they were a victim of domestic violence, unless there are circumstances in aggravation which outweigh this evidence in the particular case. The reason for the change is that the legislature specifically recognized “survivors of sexual violence, intimate partner violence, and other severe forms of trauma are more likely to be incarcerated. In fact, according to the ACLU, nearly 60% of female state prisoners nationwide and more than 90% of certain female prison populations experienced physical or sexual abuse before being incarcerated. Yet, California's legal system currently lacks any consideration for the relevant experiences of survivors in the sentencing or resentencing process,” and writes “AB 124 would provide a path for courts to consider the full context of the trauma that contributed to a survivor's actions or inactions. It would create a trauma-informed response to sentencing that provides just outcomes for survivors. Currently, the societal trauma caused by criminalizing these individuals spans generations and perpetuates cycles of abuse and trauma. … AB 124 ensures that survivors of sexual violence are able to receive justice through our legal system." According to the National Center for Youth Law: "According to the ACLU, nearly 60% of female state prisoners nationwide and as many as 94% of certain female prison populations have a history of physical or sexual abuse before being incarcerated” and according to the Public Policy Institute of California, “Black women make up 25% of the incarcerated population in California, which when considered alongside the reality that Black women are only 5% of the adult population yet are incarcerated at five times the rate of white women, demonstrates a deplorable overrepresentation of Black women in prison.” The State’s decision to enact this law also considered that "despite the body of research showing that the effect of trauma and abuse drives girls into the juvenile and criminal justice systems, the system itself typically overlooks the context of abuse when determining whether to arrest or charge a girl. Many trafficking survivors are incarcerated for crimes committed to protect themselves from further violence. Numerous studies show that survivors of coerced into participating in illegal activities by their abusive partners.”[1] Further, it’s widely known many victims of domestic violence of human trafficking are reluctant to report the abuse as they distrust the systems, are worried about how their attacker will respond to a report, or believe that they aren’t actually victims at all, and that they deserved what happened to them.[2] …So while there are a lot of reasons to be frustrated with the state of our criminal justice system, it appears we should have hope that we are moving in the right direction. If you’d like to talk to Devina about your criminal case, feel free to reach out. ________ [1] Survived and Punished, "Research Across the Walls: A Guide to Participatory Research Projects and Partnerships to Free Criminalized Survivors"). [2] See Institute of Medicine and National Research Council, Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States: A Guide for the Health Care Sector. Social and legal commentators have observed that gang enhancements seem to be rarely applied toward the most serious and violent offenses, but instead are often applied toward misdemeanor offenses, disproportionately affecting people of color. According to the Young Women's Freedom Center "California's gang enhancement laws have caused immeasurable damage to our communities by criminalizing culture and relationships among people in low-income Black and Latino communities. While no empirical studies have been conducted to show that gang enhancements deter crime or violence, it is well documented that they have been applied inconsistently and disproportionately against people of color: 92% of people who receive gang enhancements are people of color. Gang enhancements have been the drivers of mass incarceration because of their vague definitions and weak standards of proof.”
Senator Kamlager, author of the bill that meant to change all this stated that the bill “just asks for the charges to be proven when they’re levied against someone. Right now, our system allows a shaved head, tattoos, or even the color of your grandma’s house as reason to be charged with a gang enhancement. That’s antithetical to how our judicial process should operate and I am glad we are one step closer to a fix.” A recent change in the law is seeking to address these concerns. With regards to gang enhancements, “The Step Forward Act” does four things to try to rebalance the scales of justice. First, it shortens the list of predicate offenses which support a finding that a person is engaged in a “pattern of criminal gang activity,” by removing looting, felony vandalism, and five personal identity fraud crimes from the list.[1]Second, it states that the current charge cannot be deemed one of these predicate offenses. Third, it states that the alleged benefit to the gang must be something more than a reputational benefit. In other words, the criminal activity must be something akin to obtaining a financial gain, an act of retaliation, targeting a perceived or actual gang rival, or the intimidation of a potential witness or informant. Lastly, the definition of what a constitutes a “criminal street gang” is modified, requiring not only that it’s an “organization,” but also that it’s an “organized association.”[2] In determining whether there is an “organized association” the courts will be looking for telltales like the group having as shot-callers, a hierarchy, economic organization initiation processes, specific colors, articles of clothing or a code of conduct. These changes were made in hopes that defendants who live in low-income areas, especially those of color, will no longer be viewed as gang members, simply because of criteria which are, in most cases, out of their control. _______ [1] The list of predicate offenses can be found in penal code section 186.22(e)(1)(A) through (e)(1)(Z). [2] The definition of a criminal street gang is now: “any ongoing organization, association, an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” Not only is there stress and anxiety associated with the mere fact that a person has been charged with a crime, the act of going to court can be especially intimidating for many. While every criminal defendant has the right to be personally present with counsel at trial,[1] the law also says that in all nearly all misdemeanor cases, a defendant’s attorney may appear on their behalf, without the defendant having to be present, allowing the defendant to attend work, school, or to other obligations.[2] For defendants facing felony charges who do not wish to be personally present for noncritical portions of the proceedings (namely those where no testimonial evidence is taken,) they can also make an oral waiver in open court prior to the proceeding or may submit a written request to the court, asking that they be excused from the proceedings.
All of that said, even when a defendant has waived the right to be personally present, the court is allowed to require a defendant who is being held in any state, county, or local facility within the county to be present for noncritical portions of the trial by two-way electronic communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. But what happens when and in-custody defendant refuses to particulate with the process? …In short, prior to a recent change in the law, the system might grind to a halt. This was a because, in a lot of cases, the sheriff's department could be hesitant to physically remove the defendant from his or her jail cell to bring the defendant to court, fearing for the safety of themselves, or the defendant, or because they are concerned about the risk of contracting an illness, a fear that has been heightened by the COVID pandemic. Now, however, the court may allow a defendant to appear by way of their counsel for any matter, with or without a written waiver, if the court finds, by clear and convincing evidence: a) The defendant is in custody and is refusing, without good cause, to appear in court on that day for the trial, hearing or other proceeding, b) The defendant has been informed of their right and obligation to be personally present in court, c) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present, d) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding, e) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront witnesses against them or to testify on their own behalf, and f) The defendant has been informed whether or not defense counsel will be present. A defendant is eligible to reclaim their right to be present at the trial as soon as they are willing to conduct themselves consistently with the decorum and respect.[3] __________ [1] Cal. Const., Art. I, sec. 15. [2] Penal Code § 977 (a). If the accused is charged with a misdemeanor offense involving domestic violence the accused shall be present for arraignment and sentencing, and at any time during the proceedings when ordered by the court for the purpose of being informed of the conditions of a protective order. (Penal Code § 977 (a)(2).) [3] Penal Code § 1043 (c). This information comes straight from the CDFW website:
On October 12th, 2000, Mary Lou Henderson Morris left home to go to work and disappeared.
While unclear what happened between then and her body being discovered later that evening, her car was eventually found, burned, on the side of the road only three miles from her home with her behind the wheel, her wedding ring missing. With her body so badly burned, it was near impossible to determine the cause of death. Then several days later, Mary McGinnis Morris was also found dead less than thirty miles away from where Mary Lou Henderson Morris had been found. Her body was also found in her car on the side of the road, and her wedding ring was also missing. Her clothes were torn. She had bruises. Police found fibers in her mouth, suggesting she was gagged just prior to her death. And she had a gunshot wound on her head. Had this Mary seen it coming? In the days prior, she reported to a friend having seen a man at a local store who had given her the creeps. Was he some random, deranged serial killer with a very specific "type"? Or was the killer someone she knew? The police suspected one of Mary #2's coworkers, with whom she'd never really gotten along. But they also suspected Mary #2's husband, who may have lied to the police about his alibi, who refused to take a polygraph test, and who retained a lawyer before even being identified as a suspect. (For anyone who reads this blog frequently, you know that reasons #1 and #2 are really lame reasons for suspecting someone of a crime.) The police never solved this crime, but plenty of suspicions abound. Given that both crimes involved Marys' wedding rings going missing--a common facet of contract killings; the killer uses the ring to prove the deed has been done--folks wonder if Mary #2's husband had hired a professional to take care of his wife, and the assassin had initially killed the wrong woman. Strange coincidence? Hired Killer? What do you think? Under both the US and California Constitutions, defendants are granted the right to a public and speedy trial. This right to a public trial is in place to ensure that defendants receive a fair and open trial, and therefore are not as likely to be subject to abuse by the judge or any other court officer. But the Constitution also guarantees the right of the public to observe and monitor these proceedings as the U.S. Supreme Court has often held that public access to criminal trials is necessary to ensure freedoms of speech and the press. The relevant caselaw, however, also points out that this right of public access is presumptive, not absolute. Courtrooms can be closed to the public if it can be demonstrated that closing the proceedings serves a higher interest and that closure is narrowly tailored to serve that interest.[1]
California Code of Civil Procedure Section 124, which has just been amended in recognition of the challenges faced in ensuring public safety in light of COVID, protects the public's right to access trials and judicial proceedings in these ever-changing times. Courtrooms have been closed to the public. Many hearings have been held remotely, often with the general public unsure how to go about gaining access to the inline proceedings. As such, and as most of us working within judicial system have witnessed firsthand, the pandemic has limited constitutionally-protected public access to court proceedings. In one notable example, the Ojai Valley News sought to continue its coverage of events taking place within the Los Angeles Superior Court without sending reporters to the actual courthouse—as to minimize the risk of exposure for all involved—and requested remote access to proceedings in in the same way the court was providing remote access to parties and witnesses. The Court denied the request. When the newspaper cited the First Amendment and state law making all judicial proceedings presumptively public, the Los Angeles County Court responded that the reporters could have intended in-person proceedings, which satisfied the First Amendment and statutory right to public access.[2] In light of issues like this faced throughout the State, California Code of Civil Procedure Section 124, was amended as of January 1, 2021, to read that (except as provided in the Family Code or any other relevant provision of law,) the court is prohibited from excluding the public from physically attending court proceedings just because remote access to the proceedings is available, unless doing so is “necessary to restrict or limit physical access to protect the health or safety of the public or court personnel.” Further, if the court is closed, it must “to the extent permitted by law … provide, at a minimum, a public audio stream or telephonic means … to listen…” to the proceedings. [1] See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555; see also Press Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501, and Press-Enterprise Co. v. Superior Court of California (1986) 478 U.S. 1. [2] Los Angeles Superior Court letter to Jack Lerner, et.al. October 8, 2020. A lot of criminal defense attorneys are often asked whether a person who is legally prohibited from owning/possession a firearm is allowed to still own/possess guns such as BB or Airsoft guns. The person asking either has (1) a felony conviction, (2) a conviction for some other misdemeanor offense which nevertheless disqualifies them from gun ownership/possession, (3) a 5150 hold on their record, or (4) was adjudicated to be a mentally disordered sex offender, the most common reasons for the government to deny firearms access.
To understand why people in any of the above categories can own/possess airsoft or BB guns one need only look to the language of the law which defines what, exactly, a “firearm” is. Penal Code 1625 defines a “firearm” as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” While Airsoft and BB guns are often intentionally designed to look just like real firearms—and thus appeal to children and adults alike—they fire pellets via gas, spring, or electrical systems, and thus are not firearms. (All of that said, be aware San Francisco outlaws Airsoft guns entirely.) Other relevant facts:
If you'd like to set up an appointment to consult with Devina regarding your case, feel free to reach out to her here. While it may appear from the news that the number of Hate Crime events are on the rise, the evidence is actually to the contrary. The following information was taken from the "Hate Crime in California 2019" Report (the most current year for which data is available,) as published by the state DOJ.
Local law enforcement agencies are required to report hate crimes to the Department of Justice (DOJ) in compliance with California Penal Code Section 13023. California Penal Code Section 422.55 defines a hate crime as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) disability, (2) gender, (3) nationality, (4) race or ethnicity, (5) religion, (6) sexual orientation, (7) association with a person or group with one or more of these actual or perceived characteristics.” Overall Crime Data Summary
Hate Crime in California
Prosecutorial Data Of the 392 hate crimes that were referred for prosecution, only 288 cases were filed by district attorneys and elected city attorneys for prosecution. Of the 288 cases that were filed for prosecution, 200 were filed as hate crimes and 88 were filed as non-bias motivated crimes. Of the 166 cases with a disposition available for this report:
The following information was taken from the "Values Act 2019" Report (the most current year for which data is available,) as published by the state DOJ.
The California Values Act (Act) [1]defines the circumstances under which California law enforcement agencies (LEAs) may assist in the enforcement of federal immigration laws and participate in joint law enforcement task forces, and also mandates that California LEAs report specified statistics to the California Department of Justice (DOJ). Specifically, the Act requires California LEAs to report to the DOJ statistics about their participation in joint law enforcement task forces and their transfers of individuals to immigration authorities. Effective January 4, 2018, all LEAs were required to begin collecting data pursuant to the Act for submittal to the DOJ beginning on January 4, 2019. This report contains the data outlined in the statute for publication. As the data collection process is still in its infancy, and not all required agencies have actually reported their data yet, there is little data. What we know is this: The total number of arrests made by joint law enforcement task forces in 2019 was 15,672. That said, the total number of arrests made for the purpose of immigration enforcement by task force participants in 2019 was 35. _________ [1] as detailed in Government Code section 7284 et seq., and enacted by Chapter 495, Statutes of 2017 (Senate Bill 54), The following information comes from the 2019 DOJ report on Use of Force incidents throughout the state.
In 2015, the California legislature passed Assembly Bill (AB) 71, adding GC section 12525.2. This new statute mandates law enforcement agencies (LEAs) in California to report use of force incidents that result in serious bodily injury or death or involve the discharge of a firearm.[1] Effective January 1, 2016, all LEAs were required to begin collecting data on use of force incidents--not only those where law enforcement used forced, also where civilians used force. Due to the narrow definition of use of force in the statute, the data contained in the DOJ report only represent incidents where use of force resulted in serious bodily injury or death or the discharge of a firearm. Caution should be used in making comparisons or generalizations with this data set as it does not contain the full spectrum of use of force incidents that occurred in California. In 2019, Sonoma County reported 9 Use of Force Events. Incidents
Civilian Data
Officer Data
_______ [1] Serious bodily injury is defined in GC section 12525.2. Please see the Legislation section on page 6 for further detail. Discharge of a firearm - Includes any discharge of a firearm during an interaction between a civilian and an officer, regardless of whether any person was injured. A firearm is defined as a weapon that fires a shot by the force of an explosion, e.g., a handgun, rifle, shotgun, and other such device commonly referred to as a firearm. Not included in this definition are electronic control devices; stun guns; BB, pellet, air, or gas-powered guns; or weapons that discharge rubber bullets or bean bags. Injury severity - Severity levels below “serious bodily injury” are included in the data set due to the fact that reporting is required for any discharge of a firearm. While we all hope we never need to use force to defend ourselves or our property, sometimes a persona finds themselves in a situation wherein they seemingly have no other choice. Unfortunately the question of whether use of lethal force is justified in self-defense cannot be reduced to a simple list of factors, but here is a brief summary of the relevant law.
Lawfully Using Lethal Force in Defense of Life and Body The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, if a reasonable person in the same or similar situation would believe that:
It is lawful for a person being assaulted to defend themself from attack if he or she has reasonable grounds for believing, and does in fact believe, that he or she will suffer bodily injury. In doing so, he or she may use such force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent great bodily injury or death. An assault with fists does not justify use of a deadly weapon in self-defense unless the person being assaulted believes, and a reasonable person in the same or similar circumstances would also believe, that the assault is likely to inflict great bodily injury. It is lawful for a person who has grounds for believing, and does in fact believe, that great bodily injury is about to be inflicted upon another to protect the victim from attack. In so doing, the person may use such force as reasonably necessary to prevent the injury. Deadly force is only considered reasonable to prevent great bodily injury or death. Limitations on the Use of Force in Self-Defense The right of self-defense ceases when there is no further danger from an assailant. Thus, where a person attacked under circumstances initially justifying self-defense renders the attacker incapable of inflicting further injuries, the law of self-defense ceases and no further force may be used . Furthermore, a person may only use the amount of force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent imminent injury. It is important to note the use of excessive force to counter an assault may result in civil or criminal penalties. The right of self-defense is not initially available to a person who initiates the assault of another. However, if such a person attempts to stop further combat and clearly informs the adversary of his or her desire for peace but the opponent nevertheless continues the fight, the right of self-defense returns and is the same as the right of any other person being assaulted . Protecting One’s Home A person may defend his or her home against anyone who attempts to enter in a violent manner intending violence to any person in the home. The amount of force that may be used in resisting such entry is limited to that which would appear necessary to a reasonable person in the same or similar circumstances to resist the violent entry . One is not bound to retreat, even though a retreat might safely be made. One may resist force with force, increasing it in proportion to the intruder's persistence and violence, if the circumstances apparent to the occupant would cause a reasonable person in the same or similar situation to fear for his or her safety . The occupant may use a firearm when resisting the intruder's attempt to commit a forcible and life-threatening crime against anyone in the home provided that a reasonable person in the same or similar situation would believe that:
Defense of Property The lawful occupant of real property has the right to request a trespasser to leave the premises . If the trespasser does not do so within a reasonable time, the occupant may use force to eject the trespasser . The amount of force that may be used to eject a trespasser is limited to that which a reasonable person would believe to be necessary under the same or similar circumstances . Both the California penal and Welfare & Inbstututions Code set forth ways a person can be rendered unable to own/possess a firearm Here ia. brief summary.
Lifetime Prohibitions
10-Year Prohibitions Any person convicted of a misdemeanor violation of the following:
Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270 .15 . Persons certified under Welfare and Institutions Code sections 5250, 5260, or 5270 .15 may be subject to a lifetime prohibition pursuant to federal law . Juvenile Prohibitions Juveniles adjudged wards of the juvenile court are prohibited until they reach age 30 if they committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) . (Pen . Code, § 29820 .) Miscellaneous Prohibitions
If a conviction is rendering it impossible for you to own/possess a firearm, there may be ways to get that conviction removed from your record. Give Devina a call, and see if she can help! The following information was taken from the "Crime in California 2019" Report (the most current year for which data is available,) as published by the state DOJ.
Crime Rates per 100,000 Population
Arrest Rates per 100,000 Population at Risk
Dispositions – Adult Felony Arrests
Adult Probation
Criminal Justice Full-Time Personnel
Civilians’ Complaints Against Peace Officers
Domestic Violence-Related Calls For Assistance
Law Enforcement Officers Killed or Assaulted
|
AuthorDevina strives to make information relevant to the lives of her clients easily accessible. Archives
July 2022
Categories
All
|
RSS Feed
Proudly serving Sonoma, Marin, Napa, Mendocino and Lake Counties (and occasionally venturing as far as Yolo, Santa Clara and San Mateo Counties).
|
This website is for informational purposes only and does not provide legal advice. Do not act or refrain from acting based on anything you read on this site. Using this site or communicating with the Law Office of Devina Douglas through this site does not form an attorney/client relationship. This site is legal advertising. Please review the full disclaimer for more information. (LINK TO FULL DISCLAIMER PAGE)