*1 Dist., Six. Mar. Second Div. B196206. 2008.] [No. PEOPLE, Plaintiff and v.
THE Respondent, KEIL, Defendant and Appellant.
MICHAEL
Counsel Firm, for and David J. McDonald Gerard M. Dougherty Law Dougherty and Defendant Appellant. District Totten, O. Lyytikainen, Deputy District and Lisa Attorney, D.
Gregory Plaintiff and Respondent. for Attorney,
Opinion he was was confiscated when
COFFEE, J. firearm collection Appellant’s Code, (Welf. & Inst. and evaluation. for mental health treatment detained firearm a §§5150, 8102.)1 sustaining from a judgment He appeals 8102 and to sections and his firearms forfeited ordering pursuant prohibition motion for reconsideration. an order his denying He also appeals 8103. a did not meet its burden proving that respondent contends Appellant firearms would endanger that retention of the of the evidence preponderance or others. We affirm. appellant
Facts 2005, was an 21, having told him that she wife On November and killed in the war Iraq had been recently brother-in-law affair. Appellant’s a divorce. On was getting learned that one of sisters had just appellant His wife heavily. drank his wife’s infidelity, appellant he learned of day that he was herself, several times told his wife to kill and appellant threatened out. to blow his brains Appellant He said he was going to kill himself. going numerous firearms. owned that he was just a officer told police wife called 911. Appellant
Appellant’s officer he had said. police did not mean what off steam and blowing on the and others based a to himself danger was determined that appellant otherwise stated. to this code unless statutory All references are in the home. had access to guns a and fact that had formulated plan to a psychi- The officer took appellant firearms were confiscated. Appellant’s 5150. him to section a 72-hour hold on pursuant atric and facility placed a.m., assessed, admitted and released at 4:00 p.m. at 4:20 was Appellant firearm prohibition pursuant was notified of a five-year same day. Appellant 8103, discharge. (f), hearing upon to section subdivision requested underwent and March of 2006 psychotherapy. Between February 9, 2005, through the Simi Police Valley Department, On December of the determine whether return hearing district for a attorney, petitioned or others to result in pursuant firearms would be likely 2006, (c). hearing, At the October parties section evi- documentary to submit the matter to the court based upon stipulated included the records of the dence. These documents psychiatric offered Appellant’s therapist records report appellant’s therapist. *4 mood, with the that had an disorder adjustment depressed opinion but was not suicidal. 19, 2006, the
On October the court entered judgment sustaining petition the Police Valley firearms forfeited to Simi ordering appellant’s Department. 27, 2006, to Code of On October moved for reconsideration pursuant orally the that the had Civil Procedure section 1008 on grounds prosecutor of not to contest return of the firearms if attended six months agreed testimony he that he would have offered which did. therapy, Appellant argued The at the if he had known the would contest return. hearing prosecutor could have his firearms that she never prosecutor responded agreed appellant that that the best to demonstrate way back. She told counsel only appellant’s client a would be to his client into danger get therapy. was no longer reconsideration, that it was untimely court denied the motion for finding that it was not by because it was filed after of entry judgment supported at the time of the trial. new evidence that could not have been offered any its decision on its own The court also declined an invitation to reconsider and that concedes that the is appealable motion. Respondent notice of was filed. timely appeal Firearm Prohibition and Confiscation (1) when it sustained contends that the trial court erred Appellant (2) it ordered his firearm collection firearm and when five-year prohibition when a is firearm come into play person forfeited. We Two statutes disagree. himself or others. Section 8103 5150 as a danger detained under section a Section 8102 of firearms for period. will his possession prohibit he already of any possesses. authorizes confiscation weapons 38 others, that cause a is a to himself or
Upon probable person danger that be detained in a mental person may health for 72 hours for (§ treatment and 5150.) evaluation. A who has so been detained person may own, control, not receive or firearm for a five possess, any purchase period 8103, (§ (f)(1)), after the detention years subd. unless the a person requests and the trial court finds that the hearing have not met their burden to People show of the evidence that the “by preponderance would not be person likely 8103, to use (§ (f)(6)). firearms in a safe and lawful manner” subd. At the 8103, the court hearing, consider a broad of evidence. range Section law, (f)(5) subdivision that other provides “[notwithstanding any declara tions, information, criminal police reports, including history other any material and relevant evidence that is not excluded under Section 352 of the Code, 8103, Evidence shall be admissible at the under hearing [section (f)].” If the detained to section 5150 controls or person pursuant possesses firearms, the firearms may be confiscated a law enforcement agency. 8102, (§ (a).) detention, subd. Within 30 of release of the days person the law enforcement must either return the agency weapons petition court for a on whether return of the hearing would question or others and must endanger person of his to a notify person right (§ (c), (d).) on issue. subds. hearing Section 8102 the onus “places v. law enforcement One to initiate the forfeiture proceeding.” (People upon .22-Caliber Ruger Pistol
780].) The the burden agency bears on the issue of the proof *5 (Ibid.) return. presented by
We the substantial evidence standard of review. We affirm if apply “substantial evidence the court’s determination that return of the supports firearms to would be to result in likely appellant endangering appellant v. Yan other persons.” (Rupf 427-428 157].) Substantial evidence the trial court’s that would supports findings appellant not be to in a likely (§ 8103) use firearms safe and lawful manner and that return of the to firearms would result in and appellant appellant interview, (§ 8102). others In a that wife police appellant’s reported out,” “he said could not take it and was to blow his brains and anymore going she “went into the kitchen and called the in fear he get would police on[e] his from the safe and do himself harm.” Records of the mental many weapons himself, health indicate that admitted to kill but threatening he denied he ever intended to kill himself. In March of appellant’s conducted and that had a testing therapist psychological reported “mild to moderate level of He is to feel indeci- likely depression. unhappy, sive, and His is to have a misunderstood. unappreciated, depression apt and tension times he could develop ... At and go’ quality. ‘come
moody that She also reported released.” that are poorly around resentments anxiety and and self-defeating self-punishing as occasionally could also be seen “[h]e forethought.” in as uneven his judgment burden to meet respondent’s was sufficient
The evidence stipulated sustaining by did not abuse its discretion and the court proof, did not The court forfeited. ordering or by firearm prohibition reconsideration, his own by which motion for denying err in not have been that could on new evidence any was not based admission . hearing. at the initial presented interest a community property asserts
For the first time on appeal, appellant he claim on the time wife. He bases the behalf of his in the on weapons, marriage. firearms during researching refinishing spent polishing, the trial claim, been not to have presented We which does reject appear court. is affirmed.
Perren, J., concurred. But I likely decision. GILBERT, J., majority I concurin Concurring. P. the trial judge. Psychologists a different conclusion than would have reached a danger Mr. Keil was not Behavioral Clinic concluded County at the Ventura him. reached Keil’s The same conclusion was to himself and released months of she concluded therapy Dr. Hale. After six treating psychologist, tendencies.” The guns “he not have suicidal he suicidal” and does that is “not the safe and unloaded. Keil made no attempt open were locked in a safe to the them the combination gave with the police and was cooperative safe. evidence, to agree I am compelled I view the
However differently In a thoughtful judgment. the trial court’s substantial evidence supports I of the many points acknowledged the trial court statement on record *6 be to “may depres how Keil prone It concern about have raised. expressed of certainty noted a lack The court can be released.” sion which poorly conflicts and stressful family recurrent to handle ability Keil’s regarding These disorder.” or an adjustment “major depression while suffering and support the reports information in psychological are based on concerns to himself constitute that Keil would finding 157].) Yan Rupf v. 411 (See others. who of the professionals lacked the expertise have The trial court free to some reject the court was but Keil’s profile, interpreted psychological all of their conclusions. I write to voice separately concerns that my because of Keil’s psychologi- cal condition he must forfeit an expensive gun collection on which he has “thousands of dollars spent restoring I would refinishing.” urge to Legislature consider Welfare and amending Institutions Code section 8102 to give individuals such as Keil to sell or opportunity otherwise dispose of their in a manner that weapons assures with the statute. compliance
Another would be to allow option such to persons control of relinquish their and have them stored at their own for the expense period in Welfare and probation provided Institutions Code section (f)(1). At the end of the probationary matter would be period subject reevaluation.
These approaches give individuals to the subject statute an opportunity their preserve without property rights undermining public safety statute is designed protect.