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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
Under California law, a defendant is mentally incompetent to stand trial if, as a result of a mental disorder or developmental disability, he cannot: (1) understand the nature of the criminal proceedings, or (2) assist counsel in preparing a defense in a rational manner, as the person simply isn't able to defend against criminal charges. But what dos that actually mean? It's often clearer to explain looking to whether a person is competent to stand trial. The courts have declared a that a person is competent to stand trial if they have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and have "a rational as well as factual understanding of the proceedings against him." (Dusky v. United States (1960) 362 U.S. 402.) Unlike insanity, the inquiry looks to the person's current cognitive functioning, not that at the time the crime was committed.
There is a general misunderstanding out there that a person can be found incompetent to stand trial if they display strange behavior or are being uncooperative with the process. This is not the case. The person needs to demonstrate a genuine inability to assist with their defense. As they are often those who work most closely with affected defendants it is often defense counsel who raises a doubt that her client is competent to stand trial, but this doubt can be raised the the judge or any other official involved in the system. From there, that doubt is declared on the record and the defendant is evaluated my a qualified mental health provider to make the determination as to whether the defendant can assist in their own defense. If the mental health provider believes the person is competent, and after a hearing, if required, the court agrees, the criminal proceedings resume. If the mental health provider agrees that the defendant is not competent, and after a hearing, if required, the court agrees, then the defendant is ordered to participate in competency training, a term we use to describe the process of trying to restore the person to company, through counseling or medication. This training is typically done via the defendants commitment to a mental health hospital or placement is a suitable outpatient program. During this time, a judge can order that the defendant be administered medication against their will. If the defendant can be restored to competency, the criminal proceedings will be reinstated, picking up from where the proceedings previously left off. If they can't, then the defendant may be forced to remain in the custody of the mental health care facility for an amount of time up to the maximum term for the offense for which they were charged. Every New Years brings about a flurry of sometimes small, sometimes substantial, changes to the way in which our criminal justice system works. Here are the notable changes taking effect in 2021:
The Adult System
The Juvenile System
Changes to Law Enforcement Procedures
In California, a victim of a crime has certain right, granted to them under the State Constitution. These rights are often known as "Marsy's Law" rights.
The purpose of Marsy’s Law is to:
Marsy’s Law significantly expands the rights of victims in California. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with the following enumerated rights:
Would you feel so differently about the person selling you a new car that you wouldn’t buy a new car from him or her if you knew the salesperson had a recent conviction for Possession of a Controlled Substance? Probably not. But what about if the transaction you’re about to engage in is not buying a car, but having surgery? Would you be just as willing to let a doctor operate on you if you found out he had a similar conviction?
The State of California recognizes that in order to protect the public certain professions require those performing professional duties to hold themselves to a higher standard. Professionals such as lawyers, doctors, nurses, dentists, accountants, contractors, law enforcement officers, teachers and social workers are closely monitored by state licensing boards. As a result, professionals working in these industries often have more to lose than a little money and a little freedom if they are charged with a crime; they could lose their livelihood! The details surrounding what happens at the hearings conducted by Administrative Law Boards is outside the scope of this article, but rest assured any one licensed by the state is entitled to a hearing at which they can present their side of the case, it is the State that bears the burden of showing the licensee did something wrong, and the hearing is overseen by an independent Administrative Law Judge. One of ways in which licensing authorities find out about a licensee doing something that could give rise to a professional license suspension or revocation is through on-going criminal records checks, so don’t think that just because you don’t report a criminal conviction to the authorities doesn’t mean those authorities won’t find out. (And if you are working in a profession where you are required to report convictions, a failure to report would land you in even more hot water!) It is imperative for any licensed professional to do everything they can to minimize the collateral consequences of a potentially criminal act. If you are a licenses professional it is critical that your attorney knows about that fact, and that they work to resolve your case in a way that protects your license. Or if you have an old conviction, it’s imperative that your record is made as clean as possible under the law. Options for cleaning up your record include:
Past convictions can haunt you! If you have any sort of conviction on your record in California (or pending criminal charges,) that you feel is holding you back, reach out to Devina Douglas to discuss your options. Sonoma County is at a funny point in its handling of jury service right now in light of the COVID pandemic. Jurors are meeting—not at the courthouse, but at the fairgrounds. Very few trials are being held. But the county is still sending out lots of jury summons. Which begs the question (loudly these days, if you ask me): Does a person actually have to show up for jury service?
Yes. A person’s constitutionally-guaranteed right to a jury of one’s peers is one of the most important aspects of our criminal justice system, inspired by the idea that it shouldn’t just be the high ranking mucky-mucks, or government officials, or the “cool kids” who sit in judgement of the citizenry, it’s the citizens themselves. That’s why it is imperative that a person respond as directed to a jury summons, not just because it is a crime (potentially leading to actual jail time,) to ignore it. Once you’ve received that summons, take a close look at the date for which you’re supposed to respond. If you’re supposed to be somewhere else that day, because of an important medical procedure, or a pre-planned vacation, don’t worry! You get one free postponement, simply by mailing a request for postponement back. But unless you request a postponement, you’re going to need to follow the directions for reporting as indicated on the summons. (In Sonoma County, you can call or check the County’s website the night prior to your service date to see if you need to actually report in person.) If you’re called in to serve, but have a compelling reason why you should not be asked to be seated on an actual jury, you’ll have a chance to explain to the court why serving would be a hardship. Reasons accepted by the court include:
Yes, having to upset your daily life for jury service can be a real pain, but put yourself in the position of the defendant: would you rather have people from your own community sitting in judgment of you, or a default, nameless, faceless government entity? A common question I’m asked is “how long do the police have to arrest me after I’ve committed a crime.” A better question to ask is “how long does the DA’s office have to charge me with the crime.” And the answer to that, like so many other questions is: “it depends.” It depends mostly on the type of crime a person has committed, but whether the victim was a minor at the time of the offense can also affect this legal deadline, called the statute of limitations. The various statutes of limitation for crimes committed in California are defined in Penal Code sections 799-805.
We have statutes of limitation to ensure the DA’s office files charges in a timely manner, when evidence should be more easily available and the events are more fresh in the minds of any witnesses, so that the defendant gets the most fair trial possible. In general, once the statute of limitations period for a case has run, the DA’s office can no longer file charges. Of course, there are very serious crimes for which there is no statute of limitations: Murder, treason, and embezzlement of public funds. From there, a general rule of thumb is that most felonies (except those that are especially serious or sexual crimes committed against children,) have a statute of limitations of three years, and most misdemeanors have a statute of limitations of one year. (An “especially serious” felony is generally one in which the maximum punishment is eight or more years in custody.) For most crimes the statute of limitations begins to run at the time of the offense is committed. In order to protect the most vulnerable segment of our community—the elderly, minors, and those who are dependent on others for their daily needs—the law allows for longer statutes of limitations. For example, some crimes which involve violent, sexual acts committed against minors have statutes of limitations which do not run until the victim has turned 40 years old. A lot of crimes which involve elderly or dependent adult victims have statutes of limitations of 5 years. And for some crimes which involve a higher degree of trickery or fraud the statute of limitations may not even begin running until the crime has been discovered. Prior to this newly-enacted law, in California the maximum term of probation to which a judge could sentence a defendant was five years for felony offenses and three years for the vast majority of misdemeanor offenses. (That said, more serious misdemeanor-level offenses such as child abuse and repeat-offender DUIs were eligible for lengthened probationary periods of up to five years). Despite concerns that any reduction in the time the criminal justice system has supervise and rehabilitate offenders might detrimentally impact an offender's rehabilitation, the legislature passed, and Gov. Gavin Newsom signed AB 1950, which effectively caps misdemeanor probation at a length of one year, and felony probation at a length of two years. The reason for the change revolves around studies that have shown that probation often disproportionately affect people of color. For example, the authors of the bill cite the fact that Black Americans make up 13% of the U.S. adult population, but 30% of people who are serving a probationary sentence. Further, the "probation monitoring fees" are often an increased burden on low-income families. A 2018 Justice Center of the Council of State Governments study found that a large portion of people violate probation and end up incarcerated as a result. The study revealed that 20 percent of prison admissions in California are the result of probation violations, accounting for the estimated $2 billion spent annually by the state to incarcerate people for supervision violations. Eight percent of people incarcerated in a California prison are behind bars for probation violations. Close to half of those violations are technical and minor in nature, such as missing a drug rehab appointment or socializing with a friend who has a criminal record. And yet despite the fact that these technical violations (non-crimes) do not threaten our communities, they cost taxpayers at least $235 million per year." Gov. Gavin Newsom signed AB 3234 earlier this month, creating additional statutory mechanisms for Court-initiated Misdemeanor Diversion. Now, via PC 1001.95 et seq, the courts throughout the state can grant client pre-trial diversion, even over the DA's objection, for a very wide array of offenses. (Currently excluded offenses are violations of Penal Code 290 et seq., 273.5, 243(e), and 646.9.
Previous law authorized a county to establish pretrial diversion programs for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, and traffic violations. Proactive Diversion programs have been shown to yield lower recidivism rates than seems when the judicial system used tactics more focused on prosecuting and jailing offenders. Under the law, the defendant can be given up to 24 months to complete whatever conditions are imposed as a part of the diversion offer, and the terms of that diversion plan can be narrowly tailored to the specific facts and circumstances of the defendant's alleged crime. Should a candidate not successfully complete the diversion program, the criminal proceedings will be reinstated. Should a candidate successfully complete the diversion program, the net result will be that the criminal case against them is officially dismissed, and the record of arrest will be sealed, allowing a person to avoid potentially lifelong collateral con sequences of a conviction generally associated with having a criminal record. Because a candidate is not required to enter a plea to participate in diversion under this section, it will not count as a "conviction" for immigration purposes. The following changes were made to Cal Fish and Game regulations, effective July 2020, relevant to our area:
For a full summary of the changes in the regulations see here. We certainly cannot expect our police officers to make perfect decisions all of the time. Because of this, the legal doctrine of qualified immunity generally applies to the decision they make. "Qualified Immunity protects officers from being held personally legally responsible for a variety of constitutional violations (notably now: the right to be free from the police using excessive force against them) for money damages under federal law if the police did not violate "clearly established law."
But right now, the Supreme Court is debating whether or not this protection for officers should continue to exist. OCTOBER 2020 Update: This legislative session changes in the law have been adopted to help address instances of potential police misconduct:
For more, see here. KEEPING AN EYE ON CHANGING LAWS In resPonse to the current BLM PROTESTS: Police misconduct records.6/10/2020
Public access to records regarding police misconduct has been a hot-button issue for the last several years. Thankfully, New York is taking steps in the right direction to bring transparency to the misconduct of its officers.
For the full story see here. The following information was originally reported by the associated press[1]:
“More than a quarter of U.S. states and numerous smaller jurisdictions are looking for ways to reduce the use of solitary confinement, according to the Vera Institute of Justice, which encourages alternatives to a practice behavioral experts say is dehumanizing and can worsen mental illness. The new policies in California came after Specter’s firm sued seven of California’s 58 counties, alleging that conditions had grown inhumane as jails absorbed inmates who previously would have served their sentences in state prisons. The state in 2011 began sending less serious offenders to local jails for years at a time to ease crowding in state penitentiaries. Some jurisdictions nationwide are banning isolation for young offenders, pregnant women or those with mental health diagnoses. The California counties’ approach of generally limiting it to those who engage in continued violent behavior has dramatically reduced the number of inmates in isolation and the length of time they stay there…. Sacramento County also is following the policy pioneered by Santa Clara County, while Fresno County is considering it. Among other things, it encourages the use of low-cost incentives to reward good behavior, like the opportunity to listen to the radio, watch a movie or get an extra snack. Sacramento County has cut its isolated population roughly in half, to about 60 inmates, said Lt. Alex McCamy: “It’s a limited time frame and a limited group, but the initial impression is positive.” Rick Raemisch, who restricted the use of solitary confinement when he headed Colorado’s prison system, said the violent, tense, dirty conditions in Santa Clara County’s jail improved markedly with the new policy. “Think of yourself being in a cell the size of a parking space for 23 hours a day,” said Raemisch, who consulted with county officials. “At a minimum you’re going to get angry, and when you get angry you’re going to fight back.” Inmates nationwide are most often segregated for nonviolent “nuisance infractions” like smoking, cursing, disobeying orders or having unauthorized items from the commissary, said the Vera Institute’s Sara Sullivan. Santa Clara County once locked a woman in solitary confinement for 2 1/2 years for talking back to correctional officers or yelling and banging on her cell door with other detainees, according to Specter’s lawsuit. The California counties’ new policy of restricting its use to continued violent behavior could be seen as a national pilot program, Sullivan said. ...There’s been a decades-long effort to reform solitary, especially in prisons. But what we haven’t seen is a paired reform effort for jails,” said Amy Fettig, director of the American Civil Liberty Union’s Stop Solitary campaign…. Long-term isolation can be so debilitating, Fettig said, that she’s had clients cut themselves “just to feel something because they’ve become numb.” ________________________ [1] https://apnews.com/2c40e61703f2a493c4dfa152150e7a29 Despite the passage of the “Wildlife Traffic Safety Act,” the result of SB 395, it is still illegal to collect or possess roadkill. However, the new law is paving the way for citizens to use the “salvageable wild game [roadkill] meat” meat of deer, elk, pronghorn antelope or wild pig. According to data from the CHP, approximately 8,000 large game animal vs. vehicle collisions have occurred statewide over the last six years. These collisions have resulted in over 1,500 injuries and at least 24 fatalities to motorists and their passengers. UC Davis researchers estimate that the costs associated with animal vs. vehicle collisions exceed $200 million annually. But perhaps more tragically, for the large animals involved in these collisions, approximately 40% of them are killed, and many are injured, however the fate of roughly one-third is unknown. According to the author of SB 395, Bob Archuleta, “By allowing the take of large game animals after a highway collision, and by logging the site of the incident, we not only clean up our highways, we gather the necessary data to prevent the occurrence in the future.” So if the new law doesn’t allow the taking of roadkill, what does it do? The new change in the law gives the California Fish and Game Commission permission to work with the California Department of Transportation, California Highway Patrol and the California Office of Environmental Health Hazard Assessment with the goal of ultimately adopting regulations to establish a “salvageable wild game meat utilization program.” Such a program would almost certainly include a permitting and a reporting process. Currently, California’s best public reporting system on roadkill statistics is that run by the University of California, Davis. (Their California Roadkill Observation System (CROS) allows anyone to contribute roadkill data and photos to the system.) However, the new law allows the Fish and Game Department to create their own roadkill reporting database, with the goal of helping wildlife managers identify the places where wildlife/vehicle collisions are most common. With that information, legislators claim the state can make more pinpointed wildlife conservation efforts. The permitting process—which per the law’s text, will generate free permits—is expected to be run via a user-friendly and cell-phone-friendly web- based portal. Permitting will take into consideration roadways, locations, species subject to salvage, and any other aspect necessary to ensure the salvage pilot program’s success. With a permit, any person who unintentionally strikes and kills a specified animal on a roadway or who encounters an unintentionally killed animal of eligible species may recover, possess, use or transport the whole animal and salvage the edible portions. That said, only an officer of the Fish and Game department or a law enforcement may kill a severely injured animal that has been struck by a passing vehicle. However, once an injured animal has been euthanized by one of these designated officers, a permitee can lawfully collect the meat. With this change in the law, California will be one of among half of the states allow roadkill to be collected, processed and eaten. If you have been arrested or cited for a Fish and Game violation in Sonoma, or any of Sonoma’s surrounding counties, contact Devina Douglas. |
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