DO NOT POINT A GUN AT ANYBODY

By:  Roman P. Mosqueda, Esq.

            You have a little too much to drink at a social gathering. On the way home, you are driving erratically.  Your wife tells you to pull over.  You do. She drives the car home.  You get mad at her.  You are under the influence of alcohol.

            At home, you begin throwing things around.  You get your loaded gun from a drawer.  You go out of the house, looking for your wife. 

            You are met by the boyfriend of your daughter.  He asks you to give him the gun.  You threaten him.  You point the gun at him.

            As he reached for the gun, you lower the gun.  You go back to the house.  Afraid for your safety, your daughter calls the police that you have a gun.

            The police come and interview your wife, daughter, her boyfriend and your son.  They arrest you for assault with a deadly weapon, under Section 245(a)(2) of the Penal Code, a felony, punishable by imprisonment in the state prison for two, three or four years, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

Police Precinct, Bail

Bond And Prosecutorial

Discretion:

            With your arrest, you are handcuffed, interviewed, brought to the police precinct, booked and fingerprinted.

            Bail is set by the police at $50,000 for assault with a deadly weapon, charged as a felony, not as a misdemeanor.  You are bailed out with payment of bond premium of ten (10) per cent of the bail amount plus security interest in real or personal property with sufficient equity.

            The felony charge is forwarded by the police to the Office of District Attorney for preparation and filing of the complaint.  The District Attorney has prosecutorial discretion to reject the charge, file a complaint for felony, or for misdemeanor, since the crime is a “wobbler.”

            Your defense attorney writes the Office the District Attorney, requesting the rejection of the felony charge, attaching the Declaration of the alleged victim.

            The Assistant District Attorney rejects the felony charge and writes your defense attorney that: “Hopefully, this will resolve that matter.”

            Your attorney writes the Assistant District Attorney, asking for an interview to present your version if and when the case is reopened within the 15-day period from rejection.   There is no response from the Office of the District  Attorney.

Confiscation of Bond

And Warrant Of Arrest:

            Without notifying you nor your defense counsel, the District Attorney refers the case to the City Attorney, who files a Complaint for exhibiting a firearm, a misdemeanor, under Section 417(a)(2) of the Penal Code.

            This section 417(a)(2)(B)  thereof states that: “Every person who, except in self-defense, in the presence of another person, draws or exhibits any firearm, whether loaded or unloaded in a rude, angry or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel  is punishable as follows: (B) in all other cases other than (in a public place), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”

            Arraignment on the misdemeanor Complaint is assigned to another Department of the Court.  No notice of such an arraignment is sent to you, nor your defense attorney, by the Court, City Attorney, the police or your bail bond company.

            You did not appear for arraignment;  A warrant for your arrest is issued by the Court and your bond is confiscated.  The Court clerk notifies your bail bond company of the confiscation of your bond.  You notify your defense counsel, who calls the criminal Clerk of the Court, who confirms the filing of the misdemeanor complaint and the assignment of the case to a different Department, and an arraignment date.

          Your defense attorney asks the Department clerk for a court date to surrender you.  You appear before the Department Judge, who recalls the warrant of arrest and reinstates your bail bond.

Disposition of Complaint

For Exhibiting Firearm:

            Your defense counsel is successful in the rejection of the felony charge of assault with a deadly weapon, but was not informed of the referral of the case to the City Attorney by the District Attorney, although he had requested for an interview for any reopening or subsequent action thereon.

            Your attorney plea bargains with the Assistant City Attorney for a disposition of the misdemeanor Complaint.

            He is referred to an Assistant City Attorney with the Gun Unit to discuss terms of disposition. He is informed that imprisonment for three months is the mandatory minimum under the Penal Code and cannot be reduced nor waived by the City Attorney.

          After discussion with your defense attorney, you agree to:  plea of no contest (equivalent to guilty) to the misdemeanor Complaint, placement on summary probation for 36 months, imprisonment of 90 days in county jail, destruction of the firearm, no possession of firearm for 10 years, obey all laws, and other standard probation terms.

            The Judge sentences you accordingly, calling the sentence of 90 days in county jail as “extremely  generous,” being the bare minimum he could impose.

            The bailiff and Assistant City Attorney inform you and your defense counsel before your plea that most likely you will serve only 10 per cent of the 90 days, or even less, in county jail because the County of Los Angeles jails are overcrowded at this time.

            So, you agreed to execute the Waiver of Rights and Sentence forms and plea no contest to the misdemeanor Complaint before the Judge, hoping to serve only 9 days or less in county jail.

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