Rupf v. Yan, A089051.

CourtCalifornia Court of Appeals
Writing for the CourtKline
Citation85 Cal.App.4th 411,102 Cal.Rptr.2d 157
PartiesWarren E. RUPF, as Sheriff, etc., Plaintiff and Respondent, v. Alexander Almelia YAN, Defendant and Appellant.
Docket NumberNo. A089051.,A089051.
Decision Date11 December 2000
102 Cal.Rptr.2d 157
85 Cal.App.4th 411
Warren E. RUPF, as Sheriff, etc., Plaintiff and Respondent,
Alexander Almelia YAN, Defendant and Appellant.
No. A089051.
Court of Appeal, First District, Division 2.
December 11, 2000.

[102 Cal.Rptr.2d 160]

[85 Cal.App.4th 416]

W. Michael Becker, Lafayette, CA, for Appellant.

Beatrice Liu, Deputy County Counsel, Victor J. Westman, County Counsel, Martinez, CA, for Respondent.

[102 Cal.Rptr.2d 161]



Welfare and Institutions Code section 8102 authorizes the confiscation and possible forfeiture of firearms or other deadly weapons from persons

85 Cal.App.4th 417

taken into custody for evaluation of their mental condition under Welfare and Institutions Code section 5150.1

Appellant Alexander Almelia Yan challenges the constitutionality of section 8102 on its face and as applied to him. He argues there is no relation between the legislative intent behind the statute and its application and that it is vague and overbroad. He further argues that the court erred in admitting hearsay evidence and in basing its decision thereupon. Finally, he contends the court's determination that return of the firearms would be likely to result in endangering himself or other persons is unsupported by substantial evidence.


On May 10, 1998, Deputy Sheriff Richard Fuller was called to Doctor's Hospital in San Pablo following an incident involving appellant at his home. Fuller detained appellant for a mental evaluation pursuant to section 5150 because he concluded that appellant was a danger to himself. Fuller based his conclusions upon the totality of circumstances he learned from an emergency medical technician (EMT) at the scene, medical staff, appellant himself, and appellant's mother and sister. These facts included the following:

Appellant's mother made an emergency 911 call after hearing a thump in the bathroom and finding appellant on the floor. An EMT responded to the call and found appellant in a drug-induced state. Appellant admitted to Fuller that he had been depressed about work and school. He admitted he had deliberately taken approximately four pills of carisoprodol, a prescription painkiller or relaxant drug, commonly referred to as Soma. Medical staff at the scene of the incident believed appellant had taken more than four pills. Appellant's mother and sister told Fuller appellant had been under stress. His sister said the pill bottles found at the scene belonged to appellant and that she had discovered the bottle marked carisoprodol in appellant's bathroom. Two bottles of carisoprodol were found at appellant's home, one empty bottle and one bottle marked with a capacity of 500 tablets. Fuller counted 382 tablets remaining in that bottle. Appellant admitted at the hearing that he did not have a prescription for the carisoprodol.

Based upon the information Fuller received from witnesses, including appellant himself, Fuller concluded appellant was depressed. In his 21 years as a peace officer, it was Fuller's experience that depression sometimes is a precursor to a suicide attempt. During the course of his investigation, Fuller

85 Cal.App.4th 418

learned from an EMT that numerous firearms were located at appellant's home. Fuller went to appellant's home later that day. He found four semiautomatic firearms with attached magazines loaded with live ammunition. Specifically, Fuller found two loaded semiautomatic rifles in the closet, one loaded semiautomatic pistol on the bed and one loaded semiautomatic pistol under a pillow. Fuller confiscated the firearms pursuant to section 8102.

Appellant was detained under section 5150 for three days for observation at Merrihew Memorial Hospital and Herrick Hospital. He was released on May 13, 1998 without a judicial commitment.

On June 10, 1998, respondent Contra Costa County Sheriffs Office filed a "Petition Seeking Judicial Determination Re Return of Firearm or Deadly Weapon" pursuant to section 8102 and notified appellant of the filing of the petition. On June 29, 1998 appellant filed a demurrer to

102 Cal.Rptr.2d 162

the petition together with exhibits and points and authorities. Appellant also sought return of the $180 filing fee he had been required to pay. Following several continuances at appellant's request, a hearing was held on May 26, 1999. At the hearing, the sheriffs case was based upon the declaration of deputy Maureen Bailey, which contained information she had received from Fuller. (No transcript of that hearing is contained in the record.) The matter was taken under submission. On June 2, 1999, the court issued a ruling that the filing fee requirement was contrary to current law and that the fee be returned to appellant. It also ruled that the firearms should not be returned. Appellant sought a rehearing on the grounds that he had not had an opportunity to confront or cross-examine Fuller, who had not been present at the initial hearing. On June 15, 1999, the court stayed its previous order to allow appellant the opportunity to cross-examine the witnesses against him and ordered respondent to present any officer upon whose testimony or statement it was relying in requesting confiscation. The rehearing was continued at appellant's request, and was finally conducted on September 1, 1999.

At the hearing, Fuller testified as to his observations and conclusions, and statements made to him by the EMT, medical staff, appellant, appellant's sister and mother. His sheriffs report was also admitted into evidence.

Appellant testified he never fired the two rifles and did not consider the firearms to be high-powered weapons and that they were not loaded, as there was no bullet in the chamber of any of the firearms. He claimed he wanted the guns back because he studied them from a historical point of view and used them for shooting at a range. He also testified that after the weapons confiscation, he had worked for a time as an armed security guard. His then employer did not know about the May 1998 incident where he was detained

85 Cal.App.4th 419

under section 5150 and did not require appellant to undergo a mental evaluation. He further testified that he had not tried to commit suicide, that the pills were for a recurring pain, and that he had never been seriously depressed. The court ruled from the bench, finding that in the circumstances, return of the firearms would pose a threat to appellant and to others and granted the respondent sheriffs petition. On October 11, 1999, the court issued a "Statement of Decision and Order" granting respondent's petition and ordering that the confiscated firearms not be returned to appellant. The order granting the sheriffs petition contained several findings of fact and concluded that "the return of the firearms to appellant would be likely to result in endangering [him] or other persons. It is inappropriate for assault weapons to be in the hands of a mentally unstable person." This timely appeal followed.

I. Constitutionality of Welfare and Institutions Code section 8102.

A. Statutory and decisional background.

Section 8102 provides in pertinent part: "(a) Whenever a person, who has been detained . . . for examination of his or her mental condition . . . is found to own, have in his or her possession or under his or her control, any firearm whatsoever . . . the firearm . . . shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm . . . . [¶] (b) Upon confiscation . . . the peace officer or law enforcement agency shall notify the person of the procedure for the return of any firearm . . . which has been confiscated, [¶] Where the person is released, the professional person in charge of the facility . . . shall notify the person of the procedure for the return of any firearm . . . which may have been confiscated, [¶] Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person . . . . [¶] (c) Upon the release of a person as

102 Cal.Rptr.2d 163

described in subdivision (b), the confiscating law enforcement agency shall have 30 days . . . to initiate a petition in the superior court for a hearing to determine whether the return of a firearm . . . would be likely to result in endangering the person or others, and to send a notice advising the person of his or her right to a hearing on this issue." In Bryte v. City of La Mesa (1989) 207 Cal.App.3d 687, 255 Cal.Rptr. 64 (Bryte), the Court of Appeal found a former and very different version of the statute unconstitutional as it violated state and federal procedural due process standards by permitting peremptory seizure of property, but did not contain within its own ambit a provision for administrative review. The existence of a collateral judicial remedy was deemed insufficient to satisfy due process because the person whose firearms had been

85 Cal.App.4th 420

confiscated was required to initiate proceedings in the superior court to obtain the return of the property, including preparing formal pleadings, paying a filing fee, and participating in all the formal procedural devices of the superior court. (Id. at pp. 690-691, 255 Cal.Rptr. 64.) Moreover, the statute contemplated placing the burden of proof on the person seeking return of the firearms, rather than upon the seizing authority. (Id. at p. 691, fn. 4, 255 Cal.Rptr. 64.) In 1989, the Legislature amended the statute to remedy the defects identified by Bryte.2 (See People v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 100 Cal.Rptr.2d 780.) "Under the current statute, the firearms must be returned unless the law enforcement agency timely files a petition to determine whether returning the firearms `would be likely to result in endangering the person or others, and [sends] a notice advising the person of his or her right to a hearing on the issue.' (§ 8102, subds.(c) & (g).)" (Id. at p. 313...

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