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626 Question

devildoc5

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Jun 9, 2010
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Somewhere over run with mud(s)
The not fenced yards creates a public place for purposes of 12031, but that has nothing to do with my case. IIRC, it was Strider?

I couldn't tell you for sure. I read too much crap nowadays to remeber most of it anymore.

What I do remember is there was someone who possessed a firearm on private property that was not fenced in within the free victims halo around a school and they got charged for it.

Don't know who it was, thought it might have been you but apparently I was wrong, it happens.

Again I apologize for the confusion hope that clarifies a little better.
 

mjones

Regular Member
Joined
Jul 15, 2008
Messages
976
Location
Prescott, AZ
I couldn't tell you for sure. ... someone who possessed a firearm on private property that was not fenced in...

This isn't really directed directly at you Devil; but I've seen allot of general penal code confusion on the CA forum lately...


Here's where people very easily get confused...they forget that each specific penal code is separate and independant.

Concealing a firearm (12025)
Loaded firearms (12031)
GFSZs (626.9)

So, posession of a firearm in your unfenced front yard in a city is perfectly legal due to exemptions for 12025 with regard to lawfully posessed private property.

HOWEVER in that exact same scenario, the firearm cannot (generally) be loaded. This is because 12031 makes it illegal in a 'public place' Case law has established that your front yard is a 'public place' if access isn't controlled.

GFSZs make it illegal to have an unsecured handgun within the zone. It specifically provides an exception for private property which does not belong to the school. Therefore in the above scenario,
posession of an exposed, unloaded firearm in your unfenced front yard in a city is perfectly legal due to exemptions in 626.9.

Each section of the penal code spells out specific criterea which must be met...there are also specific exemption...don't blend the code sections together.
 

yawn

Regular Member
Joined
Jan 15, 2011
Messages
40
Location
west
This isn't really directed directly at you Devil; but I've seen allot of general penal code confusion on the CA forum lately...


Here's where people very easily get confused...they forget that each specific penal code is separate and independant.

Concealing a firearm (12025)
Loaded firearms (12031)
GFSZs (626.9)

So, posession of a firearm in your unfenced front yard in a city is perfectly legal due to exemptions for 12025 with regard to lawfully posessed private property.

HOWEVER in that exact same scenario, the firearm cannot (generally) be loaded. This is because 12031 makes it illegal in a 'public place' Case law has established that your front yard is a 'public place' if access isn't controlled.

GFSZs make it illegal to have an unsecured handgun within the zone. It specifically provides an exception for private property which does not belong to the school. Therefore in the above scenario,
posession of an exposed, unloaded firearm in your unfenced front yard in a city is perfectly legal due to exemptions in 626.9.

Each section of the penal code spells out specific criterea which must be met...there are also specific exemption...don't blend the code sections together.

Good post... what do you mean by unsecured... so if I walk accross my unfenced yard to my car in my drive way, the gun is not a problem if it is locked in a container, if my propperty is in a GFSZ? And a fence would be required to deem a yard "closed" to the public, making it private propperty? Does it have to restrict sight? Does a house need to have a fence around it or are the walls and doors enough for controlled access? Does an open fence gate or open door then make it illegal, or is it still controlled access? So, if I am fenced in or indoors, on my propperty that is in a GFSZ, then it would be legal for me to loaded conceal carry, or UOC on my unfenced propperty that is in a GFSZ?
 
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Theseus

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Messages
964
Location
Lamma Island, HK
Yawn,

I think you need to slow your roll a little.

Relax. Take a breath. Technically, 626.9 does not use "public place" language or intent. The confusion was the injection of my case, were the judge ruled that if private property is open to the public, then it isn't "private property within the meaning of 626.9". This ruling resulted that I could not avail myself of the private property defense. But keep in mind that my case is not case law.

Whether your "private property" is "private property for the meaning of 626.9" is up to your particular DA's interpretation. That is where the warning came from. Beware that the plain language used and understood by most doesn't mean you will be free and clear. Be prepared to be unlawfully arrested, charged, and even convicted of a crime. If you aren't prepared for that, don't open carry.

With that said, I will attempt to bullet-point clarify:

*Fence or no fence makes no difference in the application of 626.9 at this time.
*You are protected from enforcement if any of the following:
*You are transporting a firearm other than a handgun.
*You possess a firearm in the trunk of a car, or fully enclosed secure container as defined in 12026.
*You are on private property, within a business, or within a residence.
AND
*Your possession is otherwise legal. (Not illegally concealed, loaded, brandished, not prohibited person, etc.)

Case law says that a sidewalk subject to ease-of-way to a public entity (i.e. a public sidewalk) you are not protected, as it is not private property (People v. Tapia)

Places we KNOW that is not exempt (this is not complete):
*Public sidewalks
*Public roads
*Public land

Other important case law in relation to 626.9, (I forget the cases) but essentially:
*It is 1000 feet or less
*Within is inclusive of a firearm in a car if any part of the car is at or within 1000 feet, even if the firearm isn't

Now, that deals with 626.9.

Since this is a GFSZ I will not address the others.
 
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yawn

Regular Member
Joined
Jan 15, 2011
Messages
40
Location
west
Yawn,

I think you need to slow your roll a little.

Ha ha... slow my roll. I just have a lot of questions and I am realizing how convoluted this all is. They can't pass and open ban on our 2A rights yet, but they sure are good at making defending yourelf next to impossible to feel confident about. Anyway, thanks for you comments and advice.

Relax. Take a breath. Technically, 626.9 does not use "public place" language or intent. The confusion was the injection of my case, were the judge ruled that if private property is open to the public, then it isn't "private property within the meaning of 626.9". This ruling resulted that I could not avail myself of the private property defense. But keep in mind that my case is not case law.

Whether your "private property" is "private property for the meaning of 626.9" is up to your particular DA's interpretation. That is where the warning came from. Beware that the plain language used and understood by most doesn't mean you will be free and clear. Be prepared to be unlawfully arrested, charged, and even convicted of a crime. If you aren't prepared for that, don't open carry.


What I am hearing is that behind a hi fence or indoors, on my propperty, then I am probably ok, but anything other than that and it could be dicey. I wonder if your case would have been different if the propperty was yours. So, are you like in jail now then?


With that said, I will attempt to bullet-point clarify:

*Fence or no fence makes no difference in the application of 626.9 at this time.

Because your case is not case law... yet?

*You are protected from enforcement if any of the following:
*You are transporting a firearm other than a handgun.
*You possess a firearm in the trunk of a car, or fully enclosed secure container as defined in 12026.
*You are on private property, within a business, or within a residence.
AND
*Your possession is otherwise legal. (Not illegally concealed, loaded, brandished, not prohibited person, etc.)

Ok, so there is the sticking point. Could open carry in my house ever be considered brandishing? What is illegal concealed carry? I guess the gist is that I want to loaded open carry inside my house, my backyard, and my business... I actually would rather loaded conceal carry, but I could forget and walk out fron onto the sidewalk. I am much more aware of it when I open carry. Anyway, I am just wondering if this is a problem with how the law reads in common sense terms and then if it were a problem with how Palosi might want to read the law... that all make sense?

Case law says that a sidewalk subject to ease-of-way to a public entity (i.e. a public sidewalk) you are not protected, as it is not private property (People v. Tapia)

Places we KNOW that is not exempt (this is not complete):
*Public sidewalks
*Public roads
*Public land

Other important case law in relation to 626.9, (I forget the cases) but essentially:
*It is 1000 feet or less
*Within is inclusive of a firearm in a car if any part of the car is at or within 1000 feet, even if the firearm isn't

Now, that deals with 626.9.

Since this is a GFSZ I will not address the others.

Thanks again so so much!
 

Theseus

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Joined
Jul 6, 2008
Messages
964
Location
Lamma Island, HK
Brandishing requires the display to be rude or threatening. Simply open carrying is not brandishing.

Otherwise, clamly read 12025 and the exemptions provided by 12026 (now I am noticing how out of it I have been) I believe 12027? Whichever the two PC that exempt from 12025.

Pay not to where you can and can't conceal. IIRC, you are allowed to legally conceal in any property that you lawfully possess, regardless of public or not.

Then read 12031 and its exemptions. To clarify what I know about 12031. . .

You can load up when:

*You are not in public places
*You are in grave immediate danger of person and property
*You are conducting a citizens arrest
*Other that doesn't really apply to most of us

*A gated apartment community is not considered public for enforcement of "drunk in public" and might be by reasonable extension to 12031.
 

yawn

Regular Member
Joined
Jan 15, 2011
Messages
40
Location
west
Theseus... you have been excellent in answering my questions... so please don't get mad when I say that I am very confused by your post above...

So, maybe it might help if I summarize a bit...

I want to loaded open carry on my property within a GFSZ... Is it legal and what should I be aware of if it is legal? I read it as it is legal. But, areas without access control could be considered "public" for the purposes of this law and coversation? Ok, check. So, have it stowed in its locked and upright position when transporting it on private propperty that has no access control in that area. What else? Carrying probably could not be construed as brandishing... check, but hesistently since I am thinking how Pelosi might define brandishing. The property has many windows viewable from the sidewalk, which is part of the consideration.

Thanks so much all!
 

mjones

Regular Member
Joined
Jul 15, 2008
Messages
976
Location
Prescott, AZ
I want to loaded open carry on my property within a GFSZ... Is it legal and what should I be aware of if it is legal? I read it as it is legal. But, areas without access control could be considered "public" for the purposes of this law and coversation? Ok, check. So, have it stowed in its locked and upright position when transporting it on private propperty that has no access control in that area. What else? Carrying probably could not be construed as brandishing... check, but hesistently since I am thinking how Pelosi might define brandishing. The property has many windows viewable from the sidewalk, which is part of the consideration.

These are the 3 sections of the penal code which you need to know forwards and backwards...

Concealing a firearm (12025)
Loaded firearms (12031)
GFSZs (626.9)

For every situation and scenario you can think of you need to ask your self if its legal or not per each independant penal code. If you can specify a legal exemption (or lack of a law making it illegal) write down your answer and why.

Here's a few examples:

Can I LOC in my fenced front yard in an incorporated city which is 985 feet from a K-12 school?
12025 - legal; the firearm is being carried openly. 12025(f) says that openly carried firearms are not concealed

12031 - legal; you are on your own lawfully posessed private property which is not accessible to the public. 12031(l)

626.9 - legal; you are on private property. 626.9(c)(1) exempts private property which does not belong to the school.

-------
Can I Loaded Concealed Carry in my unfenced front yard in an incorporated city which is 985 feet from a K-12 school?

12025 - legal; you are on your own lawfully posessed private property. 12026(b)

12031 NOT LEGAL; you are in a public place in an inorporated city.

626.9 - legal; you are on private property. 626.9(c)(1) exempts private property which does not belong to the school.
 

yawn

Regular Member
Joined
Jan 15, 2011
Messages
40
Location
west
That helped me to see it better... thanks guys! Ok, so how does campsites (like in a tent), hotels, and, Rv's play into this?
 

mjones

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Joined
Jul 15, 2008
Messages
976
Location
Prescott, AZ
That helped me to see it better... thanks guys! Ok, so how does campsites (like in a tent), hotels, and, Rv's play into this?

Time to stretch your wings young Jedi...use the knowledge you have gained to answer the questions for yourself.

Post your answers here and we'll crosscheck you.

jedi-smiley.gif
 
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yawn

Regular Member
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Jan 15, 2011
Messages
40
Location
west
yawn
That helped me to see it better... thanks guys! Ok, so how does campsites (like in a tent), hotels, and, Rv's play into this?

mjones responded:

Time to stretch your wings young Jedi...use the knowledge you have gained to answer the questions for yourself.

Post your answers here and we'll crosscheck you.

jedi-smiley.gif

Problem is with what I mentioned in another thread, about how since 12031 specifically mentions temporary residence/campsite, the possible purposeful ommision of it in 12026 might be legal trouble for concealment in a campsite/temporary residence. Interwstingly, 12026.2 section 11 allows for transport to and from camping for personal protection use. Could section 11 help to invoke the argument that 12026.1 considers temporary residence/campsite as part of its residency clause? And could the specification of camping in section 11 lessen the legal argument for a hotel room being temprary residence?
 

KS_to_CA

Regular Member
Joined
Sep 27, 2008
Messages
443
Location
National City, CA, ,
The definition put in place for "Safe School Zone" is not related to lawful carry such as UOC. It is to be used as an enhancement for crimes commited within that zone. UOC is still legal beyond 1000'. The "Safe School Zone" 1500' zone allows for harsher sentencing of those who engage in dope dealing, gang activity etc within it.

I wonder how many LEOs and DAs know that, or admit at least... No bashing here, just truly wondering.
 
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