All posts by BenchMark Website Design

Criminal Convictions and Gun Rights

March 21, 2015

Which crimes can affect my gun ownership or gun possession rights?

Most people have a basic understanding that federal law makes it illegal to possess a firearm if you have been convicted of a (1) state or federal felony, (2) any state felony for which you were in jail for longer than one year, (3) any misdemeanor crime involving domestic violence, or (4) any misdemeanor offense potentially punishable by imprisonment for more than two years.

Unfortunately, your rights to possess a firearm can also be limited in certain situations that do not involve convictions.  These situations include those in which you (1) have been adjudicated to be “mentally defective” within the past five years, (2) have been committed involuntarily to a mental institution within the past five years, (3) are subject to a restraining order, TRO, or stay way order that prohibits you from stalking, harassing or threatening either your partner, child or your partner’s child, (4) are an undocumented immigrant, (5)  received a dishonorable discharge from the military, (6) are being currently charged with a felony, (7) have an active criminal warrant, or (8) have an addiction to any controlled substance.

California law furthers bans you from ever[1] possessing a firearm if you (1) have been convicted of any felony, unless it was later reduced to a misdemeanor, (2) have two or more convictions for brandishing a firearm, (3) are addicted to any narcotic, or (4) have been convicted of any number of “violent” offenses, including murder, rape, lewd acts on a child under the age of 14 years, and felony in which a gun was used, or great bodily injury was inflicted.[2]  Additionally, in California you face a ten-year ban on possessing a gun if you have a misdemeanor conviction for crimes such as assault, battery, assault with a deadly weapon, witness intimidation, threatening public officials, discharging a firearm in a grossly negligent manner, or drawing or exhibiting a firearm in a deadly manner.

The list of crimes, above, affecting your gun rights is not meant to be exclusive, but merely cites the most common crimes seen in our area. If you have a criminal conviction and would like to know for sure whether you are allowed to purchase or possess a firearm you can file an application with the Department of Justice. Once you have completed this form, you need to submit it to the Department of Justice with a copy of your fingerprints, as instructed.

What do I need to know if I have a conviction for one of the crimes mentioned above?

If you have a conviction for one of the crimes mentioned above, the first thing you need to understand is what a prohibition on gun possession means. What it means is that, first and foremost, you should not purchase or attempt to purchase guns or ammunition. You should not live in or stay at a house in which anyone has guns or ammunition on the property. You should not get into a car with anyone who has guns or ammunition with them.

Further, be aware that having your conviction expunged does not reinstate your right to possess a firearm.

The laws surrounding gun ownership and possession in California can be complex. In short, if you are unsure if your criminal conviction has affected your rights to own or possess firearms, do not attempt to purchase a gun. If you’ve been charged with a weapons charge in Sonoma County, contact our Santa Rosa weapons charges lawyers today.

For more information, see

[1] If you were convicted of any of the offenses listed here as a juvenile, you are prohibited from possession of a firearm until you are 30 years old.

[2] For a complete list of “violent offenses” see California Penal Code § 29905.

Posted by BenchMark Website Design at 6:48 pm

Will the Graton Casino be Shut Down?

March 8, 2015

Since long before the Graton Casino (Casino), located in Rohnert Park, opened its doors, the “Stop the Casino 101 Coalition” had been working to get the casino shut down. Why?  Because they believe having a casino in the county will lead to an increase in instances of child neglect, domestic violence, substance abuse, financial hardship, and suicide.[1] Their legal efforts to close the casino, launched in 2008, are based on the argument that the Graton tribe does not have the jurisdiction to operate the casino on land as the land upon which the casino was built did not traditionally belong to the tribe.[2]

The land in question had been subject to the State of California’s jurisdiction since California was admitted to the United States in 1850.[3]  As part of the development of the Casino, the land was transferred from private ownership and placed into trust for the Graton tribe.[4] However, the Coalition, claims, the State never ceded their sovereignty over this land, but merely transferred title.[5]  This is important, the Coalition states, because the Indian Gaming Regulatory Act (enacted by Congress in 1988 “to regulate the conduct of gaming on Indian Lands”)[6] requires that all Indian gaming comply with its requirements, one of which is that “Indian gaming be restricted to lands under tribal jurisdiction.”[7] If the land is, instead, subject to the jurisdiction of the State of California, our state Constitution would prohibit gambling[8] on the land.   While 2000’s Proposition 1A granted Indian tribes the ability to operating gaming facilities, critics claim that it was implicit that such faculties “would be located only on original reservation land.”[9]

In October 2014, the State Court of Appeals, however, announced that as the tribe was “federally recognized pursuant to federal law” when the Congress passed the Graton Rancheria Restoration Act, and the land was deemed property “of the tribe’s reservation under federal law,” the tribe was allowed to build and operate gaming facilities under IGRA.[10] The court reached that decision pointing to a line of precedent holding that “a federally recognized tribe exercises jurisdiction over its reservation.”[11] To hold otherwise, it reasoned, would run contrary to the “traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its overriding goal of encouraging tribal self-sufficiency and economic development.”[12] Finally, the court held that the transfer of jurisdiction over the land from California to the Graton tribe was a necessary implication of the Governor signing and the Legislature ratifying the tribal Compact.[13]

The Coalition filed its petition for review of the decision by the state Supreme Court on November 14, 2014.[14]  Legal commentators posit that it is unlikely that the Supreme Court will overturn the decision.[15] However, given that the voters rejected Proposition 48, which would have approved of a tribe building an off-site casino, overturning the decision would appear to be in line with what a consensus of California voters want.[16]

The determination of the case will be closely watched by other tribes in the Bay Area,[17] especially the Koi Nation and the Elem Indian Colony, which have entered competing bids for a parcel on land in Vallejo upon which the tribes hope to build another casino.[18]

[1] Stop the Casino 101 Coalition, Ten Problems Casinos Cause, located at (last visited December 29, 2014).

[2] Mark Wilson, Graton Casino Opponents File Petition for Review in Calif. Sup. Ct. (November 18, 2014).

[3] See Stop the Casino 101 Coalition v. Brown (2014) 230 Cal.App.4th 280, 283, as modified on denial of reh’g (Oct. 28, 2014), review filed (Nov. 12, 2014)

[4] Id.

[5] Stop the Casino 101 Coalition, Stop Graton Casino, located at (last visited December 29, 2014).

[6] National Indian Gaming Commission, Indian Gaming Regulatory Act, located at (last visited December 29, 2014).

[7] Stop the Casino 101 Coalition, Stop Graton Casino, located at (last visited December 29, 2014).

[8] See Cal. Const. art IV, § 19, subd. (e).

[9] Mark Wilson, Graton Casino Opponents File Petition for Review in Calif. Sup. Ct. (November 18, 2014).

[10] Stop the Casino 101 Coalition v. Brown (2014) 230 Cal.App.4th 280, 285, as modified on denial of reh’g (Oct. 28, 2014), review filed (Nov. 12, 2014)

[11] Id. at 287.

[12] Id. at 288.

[13] Id. at 290.

[14] Stop the Casino 101 Coalition, Stop Graton Casino, located at (last visited December 29, 2014).

[15] Mark Wilson, Graton Casino Opponents File Petition for Review in Calif. Sup. Ct. (November 18, 2014).

[16] Id.

[17] Id.

[18] Kevin Fagan, Indian Tribes Competing to Build Huge Casino in Vallejo, SFGate (November 18, 2014).


Posted by BenchMark Website Design at 6:12 pm

Searching for meaning within Search and Seizure Law

February 28, 2015

The Fourth Amendment protects us against unreasonable searches and seizures by the government.  However, it is well established within the law that the police are allowed to come to our front doors without a search warrant. Why? Because it is implicit in our social contract that visitors, including the police, are free to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”[1] In short, although the police are able to search parts of your property when they enter to approach the front door, that search is presumptively reasonable. Although the police need to be careful not to exceed the scope of this limited license to enter our private property, any evidence they gather or observations they make as part of walking to and from our doors can be used against us.

Also, the police are allowed to use drug-sniffing dogs to detect narcotics, concealed in all types of containers, when you are out in public. This is so, the Supreme Court states, as the dog sniff provides very limited information to officers and citizens have no legitimate private interest in contraband. Because no privacy interest is violated, these types of searches are also reasonable.[2]

But are the police allowed to bring a drug-sniffing dog to your door?  Would that type of search still be deemed “reasonable?”  In Florida v. Jardines, decided in 2013, the U.S. Supreme Court answered “no.”

The case arose in 2006 when the Police Department received an anonymous tip that Joelis Jardines was growing marijuana his home.  In response, two officers and a trained drug detection dog went to the house, and the dog almost immediately alerted to the scent of marijuana. Armed with this knowledge, the police applied for and received a search warrant.  After discovering drugs were, indeed, being grown there, Mr. Jardines was charged with trafficking marijuana.

At trial, Jardines’s lawyer moved to suppress the evidence seized from the home, arguing that the drug dog’s sniff at the front door was an unreasonable search under the Fourth Amendment, so any evidence that resulted from that sniff—including the resulting search warrant—was “fruit of the poisonous tree,” and thus inadmissible. This issue went all the way to the Supreme Court with the defendant arguing that the dog’s sniff was a substantial government intrusion into the home—albeit only onto the porch—and therefore constituted a search, and the government stating that as the police were free to go to a person’s front door, and it is not a “search” under the Fourth Amendment for a dog to sniff a person’s belongings in public, no illegal search had occurred.

Drawing a crucial distinction between the luggage at an airport[3], a car on a public street,[4] and the home, Jardines was quick to point out that the Supreme Court has always afforded privacy within the home the highest levels of protection, allowing intrusions against this privacy only with a valid search warrant. Thus, while the police can lawfully arrive at a person’s front door, and can lawfully use a specialized “tool,” a trained dog in this case, to investigate into the contents of containers outside the confines of a residence, the police need a warrant to use that same “tool” to investigate the contents of a home.[5]  As Justice Scalia stated “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”[6]

[1] Florida v. Jardines (2013) 133 S.Ct. 1409, 1415.

[2] See United States v. Place, City of Indianapolis v. Edmond, and Illinois v. Caballes.

[3] See City of Indianapolis v. Edmond.

[4] See Illinois v. Caballe.

[5] Support for this decision also came from Kyllo v. United States, a case which held that the police could not use a thermal imaging device to investigate the inside of a home. That case noted that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” is a search for Forth Amendment purposes.

[6] Florida v. Jardines (2013) 133 S.Ct. 1409, 1416.

Posted by BenchMark Website Design at 11:57 pm

The State of the State’s Supreme Court

February 17, 2015


This year, two new justices joined the State’s Supreme Court.

After 25 years on the Court, Justice Joyce Kennard retired from the bench on April 5, 2014. Her spot remained vacant until last month when Governor Jerry Brown appointed Leondra Kruger, a nomination that was approved by a unanimous vote of the state’s Commission on Judicial Appointments.  Although the appointment received some criticism as Ms. Kruger has neither practiced law in California nor served as a judge[1], the nomination yielded approval from State Supreme Court Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, senior appeals court Justice Joan Dempsey Klein and even Paul Clement, a Republican and the former Bush administration solicitor general.

Additionally, in January, Marvin Baxter, often referred to as the State’s most conservative judge, retired after twelve years on the bench. In response to the vacancy, Governor Brown nominated, and a unanimous Judicial Appointment Committee approved, Mariano-Florentino Cuéllar to the bench.[2] The committee gave him the same glowing praise they afforded Kruger, referring him as “exceptionally well-qualified.”  His nomination was approved by the voters in November.

Justice Kruger will be the state’s first African-American woman justice in nearly a decade, and at 38 she will also be one of the youngest justices to serve on the Court. Justice  Cuéllar “will be the court’s first Latino justice since 2011 and its first Latino immigrant.”[3] Both new justices received undergraduates degree from Harvard and law degrees from Yale. Before joining the Court, Justice Kruger worked as a deputy U.S. attorney general and had argued a dozen cases before the U.S. Supreme Court.  She credits her interest in public service to the examples set by her parents; her father is a first-generation American and her mother emigrated here from Jamaica to become a doctor. Justice Kruger “was raised with the belief that anything is possible if you set your mind to it, but that with great opportunities comes great responsibilities to contribute and to be of service to others.” [4]  Justice Cuéllar previously worked for the U.S. Department of the Treasury, and most recently, taught Criminal, Administrative and International Law at Stanford.

Legal commentators refer to Justice Kruger’s politics as being “a touch liberal, but nothing extreme,”[5] whereas Justice Cuéllar is decidedly liberal.[6]  They represent the second and third democratic-appointees to a seven-member bench that has held a Republican tilt since 1987.[7]  This political swing will likely have the most significant effect in the fields of criminal and immigration law.[8]

Both were sworn in on January 5, 2015.

[1] See Marshall Kilduff, Jerry Brown’s Judges, No Experience Necessary, SFGate (November 25, 2014).

[2] Bob Egelko, Panel OKs Mariano-Florentino Cuéllar for California Supreme Court, SFGate (August 25, 2014).

[3] Bob Egelko, California Supreme Court Nomination a ‘Statement’ to U.S., SFGate (July 22, 2014).

[4] Alexei Koseff, Leondra Kruger confirmed to California Supreme Court, Sacramento Bee December 22, 2014.

[5] Marshall Kilduff, Jerry Brown’s Judges, No Experience Necessary, SFGate November 25, 2014.

[6] Bob Egelko, Gov. Jerry Brown’s High Court Agenda, SFGate (August 28, 2014).

[7] Bob Egelko, Brown Nominee to State High Court is Fast-Rising Legal Star, SFGate (November 25, 2014).

[8] Bob Egelko, Gov. Jerry Brown’s High Court Agenda, SFGate (August 28, 2014).

Posted by BenchMark Website Design at 6:06 pm

In the News – Vandyk Law

August 26, 2014
Posted by BenchMark Website Design at 3:38 pm