California Criminal Defense Blog

Last week, three ex-Duke football players pled guilty to two misdemeanor gun charges: possessing a gun on school grounds and possessing a concealed weapon. Each student received a one-year probation, a $500 fine, and community service. Because these were misdemeanor charges, their Second Amendment Gun Rights were not revoked.

Unless you’re convicted of a misdemeanor crime of domestic violence, most misdemeanor convictions do not result in a ban on owning or acquiring firearms. However, all felony convictions do. At least this is the law in California.

But even when these rights are revoked, there’s still hope. There are several options available to restore your California firearms rights. Expungements, felony reductions, certificates of rehabilitation, and governor’s pardons are all tools that, if successful, can restore your California firearm rights.

Yet despite the fact that you regain your California gun rights, you may still be subject to a federal firearms restriction. In order to ensure that you don’t inadvertently break the law by carrying a weapon in violation of a prohibition, it’s best to obtain a copy of both your California and federal criminal records. Doing so allows you to verify whether there are any holds on your right to bear arms.

Yes, that’s right. California law recognizes even seemingly innocent objects such as beer bottles and animals such as dogs as deadly weapons…that is, if used in a manner that is likely to cause a serious injury to another.

If, for example, Bob is in a bar brawl…and smashes a beer bottle over Mike’s head…prosecutors could charge him with assault with a deadly weapon. Similarly, if Sue instructs her dog to attack Phil, the dog qualifies as a deadly weapon.

But what about police dogs? These dogs are by definition deadly weapons, since they are trained to attack on command. And while it’s true that they are useful tools for cops, when used inappropriately, police dogs and the police who command them are abusing their power.

And let’s face it, animals are unpredictable. At any time, a dog, even a trained police dog, can ignore its commands or break free from its owner. And when it does, the results can be terrifying, unjust, and even illegal.

In New Hampshire they are. In California, not so much. Last Thursday, New Hampshire repealed a law prohibiting people from carrying switchblades, stilettos, dirks, and daggers. What used to be considered a misdemeanor is now perfectly legal in that state.

However, this state continues to prosecute people who carry concealed dirks, daggers, and other “dangerous” knives. California allows people to carry specific knives, including dirks and daggers, as long as they’re carried openly in a sheath. However California law also bans carrying certain knives altogether, like switchblades, regardless of whether they’re concealed or carried openly. It’s okay to possess certain knives in specific locations, while it’s illegal to possess others at any time.

Sound confusing? It is.

Although California’s knife laws aren’t as strict as some others, they are still tough and very convoluted. So what’s a knife owner to do? The best advice is to become well-versed in California’s knife laws before deciding to purchase, possess, or carry dirks, daggers, or other knives.

The answer to this question can be somewhat confusing under California law. Take for example, a situation where someone points a gun at someone else. While it would seem like this would be an obvious violation of California’s “assault with a firearm” law, it isn’t. And before we could say whether this qualifies as an assault with a deadly weapon (ADW) or an assault with a firearm, some other questions would have to be answered first.

Was the gun loaded? If not, these circumstances don’t violate California’s “assault with a firearm law” because there is no actual ability to shoot someone. But instead let’s say that rather than pointing the unloaded gun at another person, the individual used the gun to “pistol whip” the victim. Under these circumstances, the offense could be either an assault with a firearm or an ADW.

And how the offense is classified is actually very important as well…especially if the firearm is a machine gun, assault weapon, or semiautomatic firearm. An assault with one of these firearms subjects an offender to three to twelve years in the state prison. An assault with a “generic” firearm subjects an offender to six months in a county jail to four years in prison. An ADW doesn’t even carry a mandatory jail or prison sentence.

So while it may not seem like there’s a significant difference between the phrases “assault with a deadly weapon” and “assault with a firearm”, they have very different legal definitions and very different penalties under California’s gun laws.

Police arrested a Delta Airlines off-duty pilot last Saturday when airport security found a concealed loaded handgun in his luggage. Although the pilot reportedly had a permit to carry a concealed weapon, that authority doesn’t extend to an airport.

This is a popular misconception about concealed weapons’ permits. In this state, holding a California permit to carry a concealed weapon “CCW” allows you to legally carry a concealed weapon…an act that would otherwise be illegal. But just because you hold a valid California CCW permit does not mean that you can carry your gun anytime, anywhere.

For example, you can’t carry an assault weapon or long-gun. California CCW permits only apply to legal “pistols, revolvers, and other firearms capable of being concealed upon your person”. In addition, you are only permitted to carry the specific weapons that are listed on your permit.

Disobeying the rules relating to your CCW permit may lead to the revocation of that license…and to additional criminal penalties as well. This is why it’s so important to familiarize yourself with the local laws of your state that govern CCW permits.

The Orange County District Attorney’s Office announced last week that they were rejecting domestic violence charges that were brought against Tito Ortiz – the boyfriend of former porn star Jenna Jameson. Initially Jameson reported that Ortiz had “attacked her” but then later took back the allegations. The D.A.’s office couldn’t corroborate the charges, which is why they rejected the case.

If the D.A.’s office had filed charges…and subsequently obtained a conviction…Ortiz would have faced a jail or prison sentence, substantial fines, probation, counseling, a protective order instructing him to stay away from Jameson and, perhaps a less publicized penalty, the loss of his California and federal gun rights.

People convicted of felony domestic violence charges lose their California and federal gun rights for life. People convicted of misdemeanor crimes of domestic violence lose their California gun rights for ten years. But because a federal restriction imposes a lifetime firearms ban on these convictions, that ten-year ban is essentially moot, as federal laws trump conflicting state laws.

That’s right, you read that correctly. California law provides that you can be convicted of using a firearm even if you’re not the one who uses the gun. This is because Penal Code 12022 and PC 12022.5, California’s sentencing enhancements for “personally using a firearm” apply to any principal involved in the crime.

You are a “principal” to a crime regardless of whether you directly and actively participate in the commission of the crime or whether you simply aid and abet another person who does so.

This means that in addition and consecutive to the sentence you receive for the underlying offense, you will serve another one to five year state prison sentence if you or an accomplice uses a firearm.

These sentencing enhancements under Penal Code 12022 and PC 12022.5 apply to offenses when you or an accomplice either use a firearm or are even armed with a firearm. And to make matters worse, you can be convicted of these sentencing enhancements even if you don’t know that one of your accomplices is armed.

No more life in prison without possibility of parole for juvenile offenders convicted of nonhomicide crimes. So says the Supreme Court.

Such a punishment contravenes the evolving standards of decency through which we evaluate the Eighth Amendment. Such a punishment leaves no room for redemption.

Here is part of what Justice Kennedy wrote for the majority in Graham v. Florida:

The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential…Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.

The Court’s message is gratifying, especially for those of us in California (one of the eleven states that have imposed this kind of sentence) who face significant challenges presented by a tough-on-crime justice system and correspondingly overburdened prison system.

Perhaps the Court’s message will reverberate. Perhaps our justice system and correctional system can mature as well...and fulfill their potential.

Perhaps there’s room for redemption.

Unlike some other states, California requires that all private party gun transfers be brokered through a licensed California gun dealer. If you don’t participate in this type of required exchange, the circumstances of the offense will dictate which California gun law(s) prosecutors will accuse you of violating.

Penal Code 12070 PC California’s law against the unlicensed sale of firearms, selling dangerous firearms prohibited under Penal Code 12020 PC, or Penal Code 12021 PC California’s “felon with a firearm” law are a sample of some of the most common offenses that could be charged in connection with the unlicensed sale of a firearm.

It’s important to understand the laws of the state in which you possess, purchase, or sell firearms. Each state has very different laws and each is independent of each other. The fact that it is okay to sell your gun at a garage sale in one state doesn’t mean that this type of transaction will be legal in another.

Before engaging in any firearm transaction, it is a good idea to check with your local attorney general about your state’s rules and regulations.

Failed New York Times Square bomber Faisal Shahzad was charged with, among other things, attempting to use a “weapon of mass destruction”. The alleged weapon was a “destructive device” more commonly referred to as a bomb. Shahzad faces federal charges for his alleged crimes.

California has its own set of law relating to weapons of mass destruction. They are reflected in Penal Code 12303 PC California’s law against possessing destructive devices or explosives. Penal Code 12303 PC and its related sections punish possessing destructive devices or explosives. It’s the act of possessing these weapons that establishes criminal liability.

However, evidence that you intended to use these devices…or evidence that you actually did use these devices substantially increases your liability and your sentence. Simple “possession” subjects you to possible county jail or a maximum three year state prison sentence. “Use” raises your sentence by one year.

If you intend to cause death, or actually do cause death or great bodily injury, (as Shahzad allegedly did), you face life in prison and/or possible murder charges.

Lack of transparency regarding law enforcement use of force continues in Southern California despite years of struggles waged in the courts and media.

Recent articles and reports addressed this problem as it relates to the Los Angeles Police Commission and the Los Angeles County Sherriff’s Department.

According to an LA Times article, the Police Commission has not revealed outcomes of over 200 violent police encounters and shootings, including in custody deaths, during the last five years. The Commission cited staffing shortfalls in the Office of Inspector General.

Meanwhile, the ACLU released a report of conditions at Men’s Central Jail – a report that was hamstrung by lack of transparency from the Sherriff’s Department when it came to monitoring use of force complaints.

Police officers are entrusted with tremendous power in our society. It is critical that citizens have access to the information they need to monitor the exercise of that power, especially in high-stakes areas such as use of force.

You can read more about these issues at Police Misconduct and Civil Rights Violations and Prison and Jail Abuse.

California gun laws prohibit you from carrying a variety of illegal weapons. But instead of simply saying that you can’t carry a concealed weapon without a permit, or that you can’t possess an illegal gun, the California Legislature came up with a multitude of offenses, each one more confusing than the next.

Take the issue of unlawful possession, for example. California Penal Code 12280 PC prohibits possessing assault weapons. Penal Code 12020 PC prohibits possessing specific “dangerous” firearms. Penal Code 12303 PC prohibits possessing destructive devices. Penal Code 12025 PC prohibits carrying concealed weapons.

And, depending on the circumstances of your arrest and on the specific weapon involved, you could violate multiple offenses at the same time. If, for example, you carry a concealed assault weapon, prosecutors would likely charge you with California Penal Code 12280 PC which prohibits possessing assault weapons and Penal Code 12025 PC carrying a concealed weapon. To make matters worse, if your assault weapon is loaded, they’ll tack on a charge for Penal Code 12031 PC for carrying a loaded weapon. Using the weapon adds additional charges and possibly sentencing enhancements as well.

The bottom line? Illegally possessing and/or using an illegal weapon in California can subject you to a variety of charges and to substantial penalties.

This is a big debate among gun enthusiasts. California’s open carry laws allow an individual to “openly carry” his/her unloaded firearms in plain view. Concealed carry refers to the practice of carrying concealed firearms on your person. Both are legal in California, as long as you abide by certain requirements.

Proponents of California’s open carry laws which, by the way, may soon be rescinded if newly proposed legislation passes, claim that this is the safest way to protect oneself from becoming the victim of a violent crime. If a criminal sees someone carrying a gun, open carriers believe that the criminal would be less likely to wage an attack on that individual.

Proponents of concealed carry argue that this is the best way to keep criminals at bay because it keeps them guessing as to who’s “carrying”. They also believe that it prevents the criminal from obtaining your weapon before you have a chance to defend yourself with it. Carrying a concealed weapon is legal as long as you have a permit to do so.

Racial profiling is once again in the headlines.

Not like it’s really ever gone away, but Arizona’s new legislation certainly catapults it back into the limelight. In the broadest and strictest illegal immigration law this nation has ever seen, the police will basically have the power to legally stop and detain anyone they feel may be in the state illegally. And immigrants who fail to carry their immigration papers with them will face misdemeanor prosecution.

Although law makers “claim” that racial profiling will not be tolerated, this statement might as well be made with a “nudge/nudge, wink/wink” since this new law essentially authorizes cops to do just that.

Last weekend, Californians expressed their outrage with the law with one of the largest demonstrations in the nation. Police said that there were 50,000 protestors on the streets of Downtown Los Angeles calling for an immigration overhaul.

Racial profiling is certainly not a new or novel concept in California, which is perhaps why so many people took to the streets in protest. Living in Southern California, it’s probably more likely than not that we all know at least one person who has been the victim of this illegal and immoral practice.

Trying to enforce legal immigration is one thing -- giving cops the freedom to legally indulge their prejudices is another.

California has a number of criminal bribery charges. Some involve bribing public officials, some involve private businesses, some involve jurors, and some involve witnesses. But no matter who the “players” are that are involved in the alleged bribe, there is one defense that is common to them all. If you don’t have an ill motive or a corrupt intent, you aren’t guilty of violating California’s bribery laws.

Take, for example, Penal Code 165 PC, California’s law against bribing County Supervisors or Public Corporations. Before prosecutors can convict you under Penal Code 165 PC for bribing a County Supervisor or a Public Corporation (or for being a County Supervisor or Public Officer who has accepted a bribe), they must be able to prove that you had a corrupt intent.

This means that if you simply suggest that a supervisor act in a specific way in order for him/her to obtain a benefit, or offer services or something else of value to show appreciation for a particular act…and you in turn receive a benefit from the transaction…you aren’t guilty of violating this California bribery law.

All California bribery offenses necessarily include corrupt motive…it’s the reason why bribery is illegal. This means that if you can prove that your intentions were sincere and not driven by any inappropriate objectives, you should be acquitted of any criminal wrongdoing.

Three fifteen-year-old girls were arrested over the weekend on felony charges when they attacked another teen with pepper spray and then slammed her head into the ground.

Pepper spray is a legal self-defense weapon in California. However, it is also used in a variety of illegal situations that have little or nothing to do with self-defense or the defense of others. Like the above case, people frequently use pepper spray as a way to incapacitate another person so that they may take control over that individual. And unfortunately, the police are no exception…

If used improperly, pepper spray can subject an officer to California criminal and even civil charges. Examples of inappropriate use of pepper spray by officers include situations where the officer repeatedly sprays an individual, sprays an individual who is already restrained, or sprays an individual who is exercising one of his/her many constitutional rights. Engaging in any of these types of illegal activity subjects the offending officer to California criminal charges and to being sued by the “sprayed” victim.

California has strict laws about the use of pepper spray for civilians and law enforcement alike. In order to avoid criminal charges for improperly using this potentially dangerous weapon, make sure you educate yourself prior to carrying it.

On July 29, 2010, Arizona will become the third state to allow its residents to carry concealed weapons without a permit to do so. Although there will be some restrictions for “sensitive” areas such as bars and school grounds, the law is a victory for gun lobbyists.

The remaining states, including California, continue to ban carrying concealed weapons without a permit. Penal Code 12025 PC, California’s law against carrying concealed weapons, currently punishes this crime as a misdemeanor, although aggravating circumstances can elevate the offense to a felony.

But as some states continue to ease their restrictions on firearms and other weapons, California seems to be becoming stricter. Not only is there no indication that this state will reverse Penal Code 12025, California’s law against carrying concealed weapons, but laws imposing tighter restrictions on ammunition sales are set to go into effect later this year.

“Kickbacks” are common in many industries. They are regarded as a type of “perk” and many people graciously offer and accept them without giving them much thought...or at least turn a blind-eye to the practice. Simply put, kickbacks are payment, goods, or other services that are given in exchange for a desired benefit.

But when the value of these kickbacks is greater than $250, a crime is actually taking place.

Penal Code 641.3 PC, California’s “commercial bribery” law, prohibits employees from soliciting, accepting, or agreeing to accept money or anything of value above $250 from anyone other than their employer…and without the employer’s knowledge…in return for using their position to benefit the other party.

So while you may be used to benefiting from industry kickbacks (either as the giver or receiver), beware of (1) the value of the gift, and (2) concealing it from your boss, because violating Penal Code 641.3 PC, California’s “commercial bribery” law could subject you to a state prison sentence and substantial fines.