Mr. Sanchez was charged with carrying a concealed handgun in a vehicle without a permit. The handgun was loaded, and was allegedly not registered. Under Penal Code section 12025(a)(1)/(b)(6), if an illegally concealed or loaded firearm is not registered then the criminal offense, which is usually a misdemeanor, can be charged as a much more serious felony. In the Sanchez case the District Attorney sought to prove that Sanchez’ firearm was not registered by trying to admit into evidence a certified document from the California Department of Justice stating the custodian of records had conducted “a diligent search of the Automated Firearms System… for the Firearm Ownership History of Jose Gonzalez Sanchez…” and that the “search revealed no record.” 2011 DJ DAR 4269; p. 11, 12. But the document was determined to be “testimonial” (i.e. ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’). And testimonial evidence requires an actual witness to take the stand, provide the evidence to the court and jury and, most importantly, be cross-examined by the defendant’s attorney. 2011 DJ DAR 4269; p. 23.
What does all this mean for firearm owners?
Registration and permitting databases kept by the State are not always accurate. In fact, errors are common. A defendant should never accept a written declaration or document as evidence that a firearm was not properly registered, or that the defendant lacked the correct permit. Prosecutors should be held to their burden of proof and compelled to offer sworn witness testimony to the court and jury that the defendant did not properly register and/or possess the correct permit. Because the firearm registration system is subject to much criticism for inaccuracy, prior to trial all government reports on the accuracy of the database should be subpoenaed, a database expert should be consulted, and a careful cross-examination should be prepared.
The offenses where this rule applies include carrying an unregistered loaded handgun (Penal Code section 12031(a)(1)/(2)(F)); possession of an unregistered concealed handgun (12025(a)(1)/(b)(6)); importation, sales, and/or possession of an “assault weapon” or “.50 BMG rifle” (12280(a), (b) and (c)); possession of a “destructive device” (12303); possession of one of the dangerous weapons listed in Penal Code section 12020(a)(1); importation and/or sales of large capacity magazines (12020(a)(2)); and possession of a “machinegun” (12220). There are other situations where the testimonial rule would apply as well.
Historically, registration and permitting documents like these had been allowed into evidence in court without the testimony of the preparer under the “business records” exception to the hearsay exclusion rule. The “business records” exception to the hearsay rule allowed out of court statements, in this case documents, if they were prepared in the ordinary course of one’s business. But the Supreme Court determined even if these were “business records” they were prepared for the purpose of trial, were testimonial, and therefore required the presence of a witness to testify. 129 S.Ct. at pp. 2538-2540.
The Sanchez decision follows two Supreme Court decisions establishing the law on the topic. In 2004, the United States Supreme Court declared that under the Sixth Amendment testimonial statements must be subject to cross examination at trial. Crawford v. Washington (2004) 541 U.S. 36. So if a statement is obtained outside of the courtroom for purposes of prosecution, the person who made the statement must be subject to cross-examination by the defense or the statement cannot be used as evidence. This holding was expanded in Melendez-Diaz v. Massachusetts ( (2009) 129 S.Ct. 2527). Under a Massachusetts state law, prosecutors were allowed to enter “certificates of analysis” to prove that an item was a “controlled substance” instead of having an actual person testify at trial. 129 S.Ct. at pp. 2530, 2531. The Supreme Court determined that this was unconstitutional according to the analysis in Crawford. In order to enter the information as evidence a witness would need to be present to testify to establish the illegality of the substance. 129 S.Ct. at p. 2532.
If facing charges for one or more of the previously mentioned offenses, gun owners should be sure that their attorney is aware of these Supreme Court rulings, as well as the Sanchez decision, and forces the prosecution to be held to their burden of proof and provide sworn witness testimony regarding registration and permitting documents.
Source: Michel & Associates, P.C.