Articles Posted in Gun Charges

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Ghost guns present a considerable threat to gun control laws. Ghost guns are guns that are assembled by component parts bought online. These guns are increasingly posing a challenge to law enforcement and to public safety. The component parts, essentially a gun kit, are available online for anyone to purchase.  The criminal use of ghost guns is an increasing menace and something that we will hear more about in coming months and years. These guns have been linked to hundreds of shootings, including murders; unfortunately, the use of ghost guns is rising.

Ghost gun kits or components are typically purchased online and assembled at home. Assembled ghost guns are also being sold on the street. There are no age restrictions or background checks for purchasing ghost gun kits or component parts. Once assembled, the gun has no serial number, making the gun difficult to trace. Given their ease of acquisition, ghost guns are particularly popular among teens, although they are being used in crimes committed by adults as well.

Assembling a homemade gun is not illegal. Building homemade guns has long been a tradition in the United States among hobbyists and gun enthusiasts. Ghost guns, however, do not require the skill and knowledge that is required to build a homemade gun from scratch. Ghost guns are simple enough for a kid to put together without any skills in the gun making process. The companies who sell the parts to make the gun usually sell the unfinished frame and/or receivers, about 80 percent of the gun’s component parts, while the remaining 20 percent of the gun requires simple manufacturing processes that can be done at home.

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2018 saw major change on California’s statute books, many within the criminal law arena. Below are some of the changes in law that impact those who may be facing criminal charges and those who have already been convicted.

JOB APPLICANTS WITH CRIMINAL CONVICTIONS

You may have heard the term “Ban the Box.” This term refers to new legislation in California that now prohibits an employer with five or more employees from requiring a job applicant to disclose past criminal convictions during the application process.  Practically speaking, the new law prohibits most employers from including “the box” on an employment application that asks if the applicant has ever been convicted of a crime. The law now also prohibits the employer from asking the applicant about his or her criminal history during the interviewing process. It is only after an employer makes a conditional offer of employment that the employer can ask the potential employee about previous criminal convictions. If the employer then rescinds the conditional offer, the employer must inform the prospective employee in writing with an explanation of why the offer is being rescinded. The law allows the applicant to dispute the evidence provided by the employer in the notice and the employer must consider the applicants submission.

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Under California Penal Code section 12022.5, when a person uses a firearm during the commission of a felony, he or she will almost certainly be charged not only with the felony conduct but also with an enhancement for the use of the firearm. The firearm need not be engaged or even operable for the enhancement to attach. If the defendant is convicted of the felony and the firearm enhancement is found or admitted to be true, the law requires the court to add an additional and consecutive term to the sentence. The term, depending on the type of firearm used and on the underlying crime, can range from 3 years imprisonment up to 20 years. The sentence is mandatory.

For example, a person convicted of felony assault with a non-assault weapon firearm will face a sentence of 2, 3 or 4 years in prison. But because he or she used a firearm, on top of that sentence, will be an additional 3, 4, or 10 years for use of the firearm. The court can choose the low, middle, or high term depending on a variety of factors but the court must order at least the low term.

Beginning January 1, 2018, changes to Penal Code section 12022.5 go into effect that will give more discretion to the court. The bill, which was signed into law by Governor Brown last week, that makes these changes was introduced after a California senator recognized the inequitable result when a 17-year-old was convicted for a drive-by shooting. The teen was in the car but denied that he was the one who shot the gun. Following the conviction, the judge had no choice but to sentence the teen to 25 years in prison because of the enhancement.

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Police Chase Suspect Into Backyard Hot Tub

A 29-year-old Anaheim man was arrested after Placentia police chased him into an Anaheim neighborhood and then discovered him hiding in a hot tub in the backyard of a residence.

The incident began around 5:00 a.m. when police attempted to pull over an individual in a Mustang. However, the driver ignored the officers’ instructions to pull over. At some point, a passenger in the Mustang jumped out and was detained by the officers, as the Mustang continued driving southbound on Kramer Boulevard and onto the westbound 91 freeway.

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CALIFORNIA ENDS GRAND JURY HEARINGS IN FATAL POLICE SHOOTINGS

California is the first state to announce that it will ban grand juries in the preliminary determination on whether a law enforcement office should face criminal charges after killing someone in the line of duty. The reasoning behind the ban, which goes into effect next year, is to end public suspicion fostered by the secrecy of the grand jury process. The new law only affects criminal hearings on matters in which a police officer has killed a person in the line of duty.

In California, a grand jury is composed of a panel of citizens from each county, who serve for a set period of time. Each California county selects and empanels grand juries according to that county’s rules and grand juries can hear both criminal and civil matters. In criminal matters, a grand jury hears evidence and testimony presented by the prosecution and then decides whether there is enough evidence to indict.

This process is different from the more common form of criminal prosecution in California wherein the district attorney files a complaint against the person accused of the crime and following that, a judge hears the evidence in a preliminary hearing. While the prosecutor presents the evidence, a defense attorney is present to represent the person charged and can cross-examine witnesses. The defense attorney is also able to argue to the court that the evidence is not sufficient to “bind over” the defendant for trial. The judge determines whether the evidence tends towards a reasonable suspicion that the person (or persons) committed the crime. If the judge finds the evidence sufficient, the prosecutor will then file the charging document. There are some variations on this process, but this is the general scheme.

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Penal Code Chapter 2.9C 1001.80 Pretrial Diversion For Firearm Offenses

The Legislature has introduced a new bill that will establish a pretrial diversion education program for those who are arrested for nonviolent misdemeanor or felony firearms offenses. The bill will specify the guidelines and define the criteria, application and procedures related to the diversion program. The bill will further define the procedural elements associated with a dismissal of charges and elimination of an arrest, for purposes of criminal records. Along with these parameters, the bill will authorize the imposition of any costs and fines associated with the diversion program.

In recognizing the complexity of California firearm statutes and implementing regulations and the confusion created thereby, it is being recommended that a pretrial diversion education program be created. This education program would be an alternative to prosecution for those who qualify, meaning nonviolent firearm offenses.

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As a Criminal Defense Lawyer, practicing law for more than 20 years in Orange County California, I am often asked about the law as it pertains to legally carrying a concealed weapon.   I have represented hundreds of individuals who have been charged with illegally carrying a concealed weapon.  While it is legal to buy, carry, and conceal a weapon in California, there are strict rules in doing so and strict rules as to who may obtain a license to do so.  Here is some information pertaining to applying for a license to carry a concealed weapon (CCW) and an explanation of who may and may not carry a concealed weapon.

California Penal Code sections 26150 and 26155 provides that a license to carry a pistol, revolver, or other firearm capable of being concealed, may be issued to an individual but,  a statewide standard application form must be completed and approved.

Who May be Issued a License:

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California is not doing enough to keep firearms out of the hands of the mentally ill, according to a state audit released on October 24. The breakdown is a result of the state’s failure to report a person’s mental health status to the Department of Justice (DOJ).

Why is this happening, especially in light of the ever-increasing acts of gun violence involving the mental ill, begs closer examination. The first step in looking at this issue more closely begins with the Superior courts around the state. When an individual is convicted of certain crimes, he or she loses the right to carry or possess or own a firearm. Crimes like domestic violence, restraining order violations and enumerated assault and gun possession and use offenses will cause revocation of the right.

Theoretically, the courts should automatically notify the state Department of Justice. But of the 34 courts surveyed, most weren’t even aware they had the reporting obligation, nor did they send notice of convictions to the Mental Health unit at the DOJ. Over a three-year period, 2,300 prohibited individuals did not get reported. Some courts did submit reports but they were incomplete in different ways.

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After the 2011 Seal Beach shootings, where a man walked into a hair salon carrying 3 guns, using at least two of them to shoot and kill 8 people, there was a resurfacing of the cry for gun control. Whether or not the man possessed the guns legally, it appeared to be obvious is that there were no gun laws that could have prevented this man from killing these people.

The Second Amendment to the US Constitution protects an individual’s right to possess a firearm and to use that arm for traditionally lawful purposes, such as self-defense within the home. Clearly that was not the case in the Seal Beach shootings. Additionally, there are longstanding prohibitions and restrictions on firearms possession.

The Brady Handgun Violence Prevention Act is an Act of the United States Congress that instituted federal background checks on firearm purchases in the United States. The Brady Act requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacture or importer, unless an exception applies. Further, under the Brady Act, you cannot have a gun for personal or business if you:

1. Were convicted of a crime punishable by being in prison for more than one year. Convicted felons may not possess firearms;
2. Are a fugitive from justice;
3. Are addicted to, or legally use, any controlled substance;
4. Have been ruled mentally defective by a court, or are committed to a mental institution;
5. You are an illegal alien living in the United States unlawfully;
6. Received a dishonorable discharge from the U.S. Armed Forces;
7. Renounced your U.S. citizenship, if you are a U.S. citizen;
8. Are subject to a court restraining order that involves your “intimate partner,” your partner’s child, or children; or
9. Were convicted of misdemeanor domestic violence in any court.

State gun laws vary considerably from state to state. California gun laws allow almost anyone to buy a firearm without a license. The only people generally prohibited are felons, persons convicted of certain misdemeanor offenses, persons addicted to narcotics, persons who suffer from mental illness and minors. Therefore, in California if you don’t fall into one of these categories, there are ways to exercise your Second Amendment right to bear arms.

I often get calls from individuals who tell me they are being charged with the crime of “felon in possession of a firearm”, and that they were unaware that their prior felony conviction prohibited them from possessing a firearm. Unless an individual was specifically told this, either in open court by the judge or by their attorney, or unless it was written in the paperwork associated with their conviction, they may not even be aware that they are breaking the law.

As an Orange County Criminal Defense Attorney, I am a strong believer in the Constitution of the United States and in protecting the rights of individuals. The “right to carry” laws are federal and state constitutional rights. The law has common sense protections, and as a qualified attorney, who is knowledgeable in the field of criminal defense, can help classify the exceptions for someone being charged with possession of firearms.

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In California it is illegal for a felon to possession a weapon. Penal Code 12021 states that no convicted felon may purchase, receive, own or possession a firearm. But what does “possession” of a firearm mean? Does it mean that a convicted felon must have physical possession on their person to be in violation? No. In addition to physical possession, it is illegal for a felon to have constructive possession of a firearm. Constructive possession means that a felon cannot have a gun in their house or car. It doesn’t matter whether or not the felon is present with the weapon. If the weapon is in their home or car, this is considered constructive possession and is thus a violation of the law.

There are three classes of individuals that are prohibited from possessing a firearm:

1. A felon, meaning any person who has been convicted of a crime, whether violent or not, that is punishable by a prison term of more than one year.

2. Any person who has been convicted of certain misdemeanors.

3. Any person who is addicted to a narcotic drug.

Lets take a closer look at the three classes mentioned above:

What is a Felon: A felon is anyone who has been convicted of a felony offense, in any state, under the United States Federal Law, that results in a felony punishment, or is sentenced to a federal facility for more than 30 days and a fine of more than $1,000.00.

Specific Misdemeanor Convictions: If you own, possess or receive a gun and are convicted of violating any of the following penal codes: 12021(a), 12021(b), or 12021.1. Other misdemeanor offenses that may apply are: assault with a deadly weapon, brandishing a weapon and some sex crimes.

Anyone Addicted to a Narcotic: Someone who is addicted to a narcotic is considered to be emotionally and physically dependent on that narcotic and thus have a tolerance to its effects.

What Must the Prosecution Prove to be Convicted of Violating the Felon with a Firearm Law:

1. You must fall within one of the above categories.

2. You must have owned, possessed, bought or received a firearm.

3. You knew of the presence of the firearm.

Lets take a closer look at numbers 2 and 3 above for purposes of defenses to the charge of felon in possession of a firearm. For the prosecution to prove that you “owned, possessed, bought or received” a firearm, it must be proved that you did in fact possess a firearm.

An example might be that the defendant is living and/or renting a room in a home where the homeowner has a firearm. While on formal probation, a random search of the defendant’s place of residence reveals a firearm in the home. Because the homeowner owns the firearm, and the defendant did not have constructive possession of it, he cannot be charged with felon in possession of a firearm.

Another example might be that you borrowed a friend’s car. The friend has a firearm, which he keeps under the seat of his car. You get pulled over and the police officer notices part of the firearm sticking out from under the seat. The officer will, more than likely, arrest you for felon in possession of a firearm. However, if it can be proved that: 1) you are not the owner of the car and 2) the firearm belonged to the owner of the car, then you are not guilty because you had no knowledge of the presence of the firearm.

A conviction for felon in possession of a firearm can carry severe penalties. The crime itself can result in a felony conviction under certain circumstances. This then increases the exposure of prison time that the defendant is facing. The more felony convictions a person has, the longer the prison sentence prosecutors will seek.

If you or someone you know has been arrested for or being charged with, felon in possession of a firearm, it is important to hire a criminal defense lawyer who has experience in the County in which the case is pending. Sometimes early intervention, before the charges are even filed, can result in the prosecution rejecting the case without ever being filed.

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