Petition Unlimited No Fee

Cal. Super. - 6th Dist.March 25, 2021

OLOOONGCD-POON-K NNNNNNNNNAAAAAAAAAA mem-hmm-‘DLDmNOU‘I-PWNA 21 CV381 31 9 Santa Clara - Civil Electronically Filed NORA FRIMANN, City Attorney (93249) 3y sutpe’fg Cfiuréff CA’ ARDELL JOHNSON, Assistant City Attorney (95340) °”" V ° a”_a a’a’ WESLEY KLIMCZAK, Senior Deputy City Attorney (29431 3/25/2021 T43 PM. Office of the City Attorney ev'ewed By' D Hams 200 East Santa Clara Street, 16th Floor case #219,381319 San José, California 951 13-1905 E“"°'°pe' 6111672 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanioseca.qov Attorneys for CITY OF SAN JOSE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION CITY 0F SAN JOSE, a municipal Case Number: 21CV381319 corporat'on’ PETITION RE: DISPOSITION 0F I _ WEAPON Petitioner, v. Exempt from Filing Fees Gov’t. Code § 6103 KHIEM HUU MAI, Respondent. STATEMENT OF FACTS On February 24, 2021 at approximately 10:50 p.m., officers from the San José Police Department conducted a welfare check at a residence in San José, California on a report of a suicidal male who was in possession of a rifle. The Reporting Party called 911 to report that her husband was holding a rifle to his chin and threatening to shoot himself. Officers arrived on scene and created a perimeter around the residence. Officers were advised that there were three other subjects inside of the residence along with the male who was holding the rifle. D Harri PETITION RE: DISPOSITION OF WEAPON Case Number: 1803663 O©OON®U1-POOI\J-\ NNNNNNNNNAAAAAAAAAA mem-POONAOCOmNmU'I-POONA One of the occupants inside of the residence exited the residence and made contact with officers. He advised that his wife, his sister-in-law, and brother-in-Iaw were inside the residence. He further advised officers that his wife’s brother, KHIEM HUU MAI (hereinafter “Respondent”) was holding a rifle and threatening to kill himself. The occupant advised officers that Respondent was upset because he was going through a divorce and Respondent’s wife, Reporting Party, was also inside of the residence. A short time later, Reporting Party was able to get out of the residence and she advised officers that her husband was pointing a rifle towards his chest and threatening to kill himself over their recent divorce proceedings. Reporting Party told officers she has been going through divorce proceedings for approximately two weeks with Respondent. Reporting Party further stated she served Respondent with divorce papers 0n February 6, 2021 but Respondent refused to sign them. Reporting Party stated she had agreed to meet with Respondent at his sister’s house to discuss the details of the divorce and to see if progress was going to be made in finalizing the divorce. Reporting Party told officers that her sister-in-Iaw and brother-in-Iaw were acting as mediators during the meeting. Reporting Party said the meeting was not going Respondent’s way and he was getting frustrated and he got up and walked downstairs toward the garage. When Respondent came back upstairs, he was holding a rifle. Respondent knelt on the floor and initially placed the rifle under his chin and then pointed the rifle at his chest. Respondent told his sister he could not live without his wife and he cannot go on. Reporting Party further advised officers that her sister in law was still inside the residence and was pleading with her brother, Respondent, to put the rifle down and not harm himself. A short time later, Respondent’s sister exited the residence and advised officers her brother was refusing to put the rifle down and was threatening to kill himself. She told officers that Respondent stated he would not shoot himself in the brain but would shoot himself in the heart because it was broken. Reporting Party provided officers with Respondent’s cell phone number and. Lieutenant Spears (#3413) made contact with Respondent via his cell phone and asked 2 PETITION RE: DISPOSITION OF WEAPON Case Number: 1803663 O©OON®U1-POOI\J-\ NNNNNNNNNAAAAAAAAAA mem-POONAOCOmNmU'I-POONA him to exit the residence and leave the rifle inside the residence. Respondent was taken into custody without incident. Officers conducted a safety sweep of the residence and located a rifle in the downstairs bathroom. The rifle had a loaded magazine inserted into it and a round chambered. Reporting Party told officers she feared for her safety and requested an Emergency Protective Order (EPO). Judge Bonini granted Reporting Party an EPO and Respondent was served with the restraining order. Based on the Respondent’s behavior and the statements of witnesses, it was determined that Respondent was a danger to himself and others. He was placed on 72- hour hold pursuant to Welfare and Institutions Code 5150. He was then transported to Emergency Psychiatric Services at Valley Medical Center for a psychological evaluation. During a protective sweep of Respondent’s residence, officers confiscated one firearm (“WEAPON”) and ammunition, all of which are described as follows: 1. Lewis Machine & Tool Co. CQB MRP Defender .556 semi-automatic rifle with scope (serial no. LMT82098); 2. Multiple Ammo Rounds (tag no. SJ332163-2) 3. Three Magazines (tag no. SJ332163-3); and, 4. Black rifle case with lock, gun cleaning equipment (tag no. SJ332163-4). The aforementioned WEAPON and ammunition were booked into San José Police Department Central Supply for safekeeping. ARGUMENT The City of San José (“City”) petitions the Court to order that the San José Police Department retain possession of the WEAPON police officers seized from Respondent and to order the WEAPON forfeited pursuant to Welfare and Institutions Code sections 8102 and 8103. Section 8102 requires state law enforcement agencies to confiscate a firearm or deadly weapon from any person who officials have “detained or apprehended for 3 PETITION RE: DISPOSITION OF WEAPON Case Number: 1803663 O©OON®U1-POOI\J-\ NNNNNNNNNAAAAAAAAAA mem-POONAOCOmNmU'I-POONA examination of his or her mental condition.” (See Cal. Welf. & Inst. Code § 8102(3).) Section 8102 authorizes the law enforcement agency that confiscates the weapon to petition the court “for a hearing to determine whether” return of the weapon “would be likely to result in endangering the person or others.” (Id. at § 8102(0).) If after such a hearing (or after default by Respondent) the Court finds that return of the WEAPON would indeed pose a risk of harm to Respondent or others, the Court must issue an order authorizing the law enforcement agency to destroy the weapons within 180 days from the date of the Court’s determination. (Id. at § 8102(h).) Section 8103 prohibits any person who has been forcibly admitted to a mental health facility under Welfare and Institutions Code Sections 5150-5152 (concerning people who are a danger to themselves or others) from possessing any firearm for a period of five years. (See id. at § 8103(f).) A person subject to the prohibition of Section 8103 may make a single request for a hearing at any time during the five-year period. (See id.) At the hearing, the people have the burden 0f showing by a preponderance of the evidence that the person would not be likely to use the firearm safely and lawfully. (See id.) Section 8102 incorporates Section 8103, meaning that a law enforcement agency that has confiscated a person’s weapons based 0n his mental condition may also rely 0n Section 8103 in petitioning the Court for forfeiture of the weapon. (See Id. at § 8102(a).) If the agency establishes that the person was admitted to a mental health facility as outlined in Section 8103, it need not establish separately (and the Court need not separately find) that return of the weapon would likely result in “endangering the person or others”- Section 8103 establishes that fact categorically for a period of five years. (See Id. at § 8103(f).) The City (as the relevant “law enforcement agency” here) requests that the Court order Respondent’s WEAPON forfeited because his suicide threat and related contact with San José police officers on February 24, 2021, demonstrates that he is a danger to himself and others. Return of Respondent’s WEAPON would, therefore, “be likely to result in PETITION RE: DISPOSITION OF WEAPON Case Number: 1803663 O©OON®U1-POOI\J-\ NNNNNNNNNAAAAAAAAAA mem-POONAOCOmNmU'I-POONA endangering [Respondent] or others” within the meaning of Section 8102.1 The City cannot yet confirm whether Respondent has been officially admitted to a mental care facility as described in Section 8103. The City reserves the right to rely on this ground for forfeiture in the event that Respondent requests a hearing on this petition. Should that happen, the City will determine the applicability of Section 8103 and provide any such information to the Court. CONCLUSION Based upon the above, the City respectfully requests this Court to order Respondent’s WEAPON forfeited to the San José Police Department. The City further requests that the Court’s order reflect that the San José Police Department may destroy the weapons within 180 days unless Respondent facilitates its sales or transfer as outlined in Section 8102(h). Respectfully submitted, RICHARD DOYLE, City Attorney Dated: March 25, 2021 By; Wesley K/imczak WESLEY KLIMCZAK Deputy City Attorney Attorneys for CITY OF SAN JOSE 1 In the event that the Court were to find, following a hearing, that return of Respondent’s WEAPONS would not pose a danger to himself or others, the Court would be required to order that the San José Police Department make Respondent’s WEAPONS available for his resumed possession. To retake possession of the WEAPONS, Respondent would be required to establish legitimate ownership and related requirements as outlined in Section 8102(d). 5 PETITION RE: DISPOSITION OF WEAPON Case Number: 1803663