Legal Question in Criminal Law in California

The following will assist in answering my question:

My background: Middle age, (50s), Highly educated, very well paid, upper-middle class professional. Former Military Officer. No criminal background.

Residence: San Francisco. Ultra Liberal / Democrat controlled. Police chief and DA 2nd Amd. Unfriendly. Both hostile to law abiding citizens owning handguns.

Situation:

I own a handgun, legally purchased and registered, which I carry without a CCW permit. According to CA Penal code 12020 -12040: should I be convicted of violation, (a misdemeanor), I could be sentenced to not more than 1 year in county jail and or $5,000 fine. Im unconcerned about a misdemeanor. With my background, and the economic crisis in CA, DAs dont want to put people like me in jail. They want the money, which I can easily afford. Checkbook justice works for me. My concern is the following scenario:

Im forced to use my gun, while not in my home, where I could do so legally, against an armed assailant in what would normally be considered justifiable self defense, ie: faced with death or grievous bodily harm, fearing for my life and no means of escape; such defense resulting in serious injury or death to the assailant. Due to the fact Im carrying a gun without a permit, what is the likelihood a Liberal / 2nd Amd unfriendly San Francisco DA, like Kamala Harris might set aside evidence I acted in self defense and prosecutes as assault with a deadly weapon or voluntary manslaughter; or at the very least, seek the maximum sentence as a misdemeanor: 5K + 1 Year? Note: The likelihood of such an adverse scenario will not affect my continuing to carry a gun illegally. I just want to understand its possible consequences.


Asked on 11/27/09, 11:21 pm

3 Answers from Attorneys

Lyle Johnson Bedi and Johnson Attorneys at Law

You could if the district attorney really wanted to go after you be charged with a felony assault with a deadly weapon, or if there was a death you could be charged with 2nd degree murder and sent to prison if convicted. Although the maximum amount of the fine in the penal, vehicle code etc, is not the maximum amount you could be ordered to pay. There is a penalty assessment of about 200% plus the night court fee and other fees that will in most cases triple the actual amount you have to pay. You stated course of conduct could therefore result in serious consequences for you. Why don't you move to an area that is more in keeping with your lifestyle.

Read more
Answered on 12/03/09, 2:49 am
Terry A. Nelson Nelson & Lawless

There is no wisdom gained in speculating what someone might do in a hypothetical situation. Use of deadly force could result in charges of murder, attempted murder, ADW, etc., in addition to the weapons violations; it's that simple. You can debate all you like about whether your 'justification' is sufficient to convince a jury not to convict, or to convict of a lesser offense. You carry illegally, and use, at your own peril.

Read more
Answered on 12/03/09, 2:00 pm
Robert Marshall Law Office of Robert L, Marshall

Your question may be part of the answer. The Internet is a pretty small place these days, and there's really no such thing as anonymity.

If you were in a situation where you used deadly force, your posting might come back to haunt you if a prosecutor argued it was evidence of a vigilante attitude.

Your personal animosity toward the San Francisco District Attorney probably isn't very well founded, either. In most large cities in California -- whether you perceive them as liberal or conservative -- it is difficult, if not impossible, to get a concealed weapon permit. Ironically, it is much easier in rural Northern California counties (where I practice) to get a permit, even though the crime rate is generally lower.

Deadly force should only be used when there is no alternative. If you fire a weapon at another person, you need to be prepared for the possibility that you will be charged with a felony; even if you are eventually acquitted, you could spend many months in jail before the case is resolved.

Cops have an old saying: "It's better to be judged by twelve [a jury] than to be carried by six [pallbearers]." The flip side is that you'd better be pretty darned sure you are in imminent danger of winding up in that coffin before you put yourself in a situation where you might have to face the jury.

Read more
Answered on 12/03/09, 6:03 pm


Related Questions & Answers

More Criminal Law questions and answers in California