American Flag flying upside down as signal of DISTRESS

One man prevails
against the city of Pittsburg and sets an example that will be difficult to follow



This judge made the just decision, and noted a very obvious contradiction: That Pittsburg could speculate on the possibility that Smith might do something to himself in the future, but could was not willing to speculate that the police might also do something illegal with the gun they'd confiscated.

Click here to jump to Victor's comments about value.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

BEFORE THE HONORABLE DAVID B. FLINN

DEPARTMENT 6

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CITY OF PITTSBURG, )

Petitioner, )

vs. ) No. N02-0068

JAMES A. SMITH, )

Respondent. )

______________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

DECEMBER 11, 2002

A P P E A R A N C E S

FOR THE PETITIONER: CAROL A. VICTOR

City of Pittsburg

FOR THE RESPONDENT: PETER J. MANCUS

Attorney At Law

Victorian Square

876 Gravenstein Ave. So., Ste. 3

Sebastopol, Ca 95472

I N D E X O F W I T N E S S E S

FOR THE PETITIONER:

EXAMINATION

DIRECT CROSS REDIRECT RECROSS

(none in this volume)

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I N D E X O F W I T N E S S E S

FOR THE RESPONDENT:

EXAMINATION

DIRECT CROSS REDIRECT RECROSS

GARY COCKRIELL 19 -- -- --

PHILLIP GRAF 28 -- -- --

---o0o---

DECEMBER 11, 2002 MORNING SESSION

P R O C E E D I N G S

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THE COURT: All right. This is the continued hearing of the petition for gun forfeiture involving City of Pittsburg and Mr. Smith, James Smith. And I see all parties are present.

Do you need appearances? Have you reported this before?

THE REPORTER: Yeah.

THE COURT: Did we finish the last witness? Mr. Smith was on the stand. We did not finish his testimony.

MR. MANCUS: That's correct, your Honor.

THE COURT: Mr. Smith, will you resume the stand, please.

MR. MANCUS: Your Honor, in the interest of saving time and making some constructive suggestions may I please address the Court?

THE COURT: Yeah.

MR. MANCUS: Thank you.

Good morning, your Honor. Good morning, Ms. Victor.

My client and I today like the last time very much want to work in a professional manner with you and Ms. Victor and the court staff to finish this matter today in an amicable, professional manner. With cooperation I think that can be done and will be done.

I have some constructive suggestions to make. They will only work if you and Ms. Victor will go along with them. Suggestion number one, to save time I would be willing to end my direct examination of Mr. Smith if his direct -- if his lengthy declaration could be deemed admitted into evidence as his direct examination subject to reasonable cross-examination by Ms. Victor and/or any questions the Court may want to ask Mr. Smith and any redirect I might want to ask of him. I think that would save a lot of time.

Second, I had two color photographs admitted as -- I mean not admitted but marked as exhibits. I would also like to move to have those admitted into evidence with a short explanation as the second photograph. We didn't get to that part. Second, I have -- if we get that accomplished, I have two other witnesses who would be our final witnesses to call. They are both present in court. I anticipate there will be an objection as to relevancy. I don't know how the Court would rule on that, but I do have for each of them a very detailed specific offer of proof I would like to make for each one of them if there's such an objection.

And then the Court, you being the boss, you make your ruling, and whatever your ruling is we live with it. If you rule it's irrelevant, you don't need to hear it, we live with it. If you rule it's relevant and you will hear it, I think both of them it would probably take no more probably no more than ten minutes on direct examination, and I don't know how long Ms. Victor would be.

Second, when we were here the last time at the very end you said you would let me make a record for which I appreciate, and previously when we were here at a hearing on my request for you to recuse yourself you said you'd let me make a record. And just for making a record very briefly at the risk of antagonizing you which I certainly don't want to do --

THE COURT: I don't antagonize easily.

MR. MANCUS: I just want to say the following, your Honor: When I come here, I do my best to reconcile the following obligations. One, be a good officer of the court. Two, be an effective advocate for Mr. Smith. You once at the request for recusal hearing you said that you thought I was judge shopping. I was not. You're entitled to your opinion and while I have extreme high regard for you respectfully you're --

THE COURT: We're getting off the point. I'm happy to have you make a record, but I've got an hour today for the case, and I take 45 minutes on such matters.

MR. MANCUS: Okay. I'm just, you know, I understand what you're saying, your Honor, but some of the things you've assigned to me from my point of view they are not true. You're entitled to your opinion, but they are not true.

THE COURT: Well, let me just indicate the primary aspect that I've commented on and it's not a bias, it's not going to affect the outcome of the case in any way, but I've been hearing these matters for I guess four years or so, and I've heard hundreds of them, but in fairness probably ten percent of them have counsel. The ten percent with counsel this is the first case ever that's gone over an hour and a half. There's such a thing in any area of law whether it's gun forfeiture, whether it's crime, whether it's a civil case of over trying a case.

I think that the evidence that's been presented there's some very relevant evidence presented, but I think it's been stretched almost beyond comprehension. But I don't think that affects -- you know -- that's your choice not mine. I'm happy as I say, you know, you suggested a couple of times along the way, "Just rule in my favor, and we won't have to keep going." Well, that's not the way courts of law work. It can't be the way courts of law work. We can only foresee what chaos would happen in the courtroom if every time the party that was putting on their case could stop every so often and say, "Well, Judge, have I got enough to win yet?"

MR. MANCUS: I understand that, your Honor.

THE COURT: But we're past that. If you're going to be able to finish today, it's moot, and I think we should get going.

Let me ask Counsel about the proposal.

MS. VICTOR: Your Honor, one thing I would like to say is that I am leaving the Pittsburg City Attorney's office for greener pastures. So if we could conclude this today, that would be great. But Mr. Townsend will be here to continue this matter if it does continue.

With regard to the declaration: Months ago back in July when this hearing started I said that we would accept that declaration as Mr. Smith's testimony, and I'm willing to do that. I think that that at that time the Court said subject to relevancy because there's a lot of hyperbole and irrelevant information within the declaration certainly we're willing to have that come in as Mr. Smith's testimony. I don't have cross-examination of Mr. Smith. I would like to see the photos again. I don't think they are relevant. I believe they are photographs of the guns, and I would object on relevancy to their admission.

THE COURT: It doesn't seem to me that -- I guess it's relevant what the guns are. It doesn't seem to me have much weight. It doesn't seem to have any harm to either side either. It's just a factual -- it's not a disputed fact it seems to me. I don't see any harm in putting them into evidence.

MS. VICTOR: And then I just -- they are guns that he owns, and I just don't see the relevance of the actual issue. But so I'm just stating that objection for the record.

And then the last issue I don't know what the second -- I know one expert that Mr. Mancus intends to offer is on value of the gun, and that's irrelevant, and that would be our objection. I have no idea what the second expert is going to testify to. So I'll make my objection when I know.

THE COURT: Okay.

MR. MANCUS: So, your Honor, getting what I understand Ms. Victor said subject to your approval is all of Mr. Smith's lengthy declaration filed with the Court served on Ms. Victor now considered by you to be in evidence as his direct examination testimony.

THE COURT: Subject to the commentary on their part not an objection to withdraw but the commentary that the Court should review and use evidence in it only that's relevant to the issues. I mean that's natural.

MR. MANCUS: No, I understand.

THE COURT: If there's a statement in there that they should have opened the grocery store last night at 10:00 o'clock, of course any judge is going to say, "Well, ignore that. That has nothing to do with it."

MR. MANCUS: I understand.

So it's in evidence?

THE COURT: Yes. By stipulation.

MR. MANCUS: Thank you, your Honor, and thank you, Ms. Victor.

Do you personally want to ask Mr. Smith any questions?

THE COURT: I have no questions of Mr. Smith.

MR. MANCUS: Okay.

THE COURT: And I have -- I will -- you're offering the two particular photographs --

MR. MANCUS: Yes.

THE COURT: -- into evidence?

The Court will admit them. The Court feels it's always relevant what the guns are.

MR. TOWNSEND: Excuse me, your Honor. Just so there's no confusion these were not the confiscated weapons.

MS. VICTOR: These are the guns he owns.

THE COURT: The guns he owns. It's to establish the point as I understand it that he has access to guns anyway.

MR. MANCUS: What the three of you just said is true but with a qualification. As Mr. Smith testified one of the photographs one of the handguns at the bottom of the photograph is the one that was confiscated. The one that is silver metallic color with brownish red.

THE COURT: I think that was brought out.

MR. MANCUS: Okay. But and that's the one the police department has now. But the other ones he's retained. And on the second photograph written on the second photograph in black ink there's -- I know there's the letter I think there's the letters "IP."

THE DEFENDANT: "IP in possession."

MR. MANCUS: And "NP."

THE DEFENDANT: Something to indicate that I no longer have that one. It's not in my house anymore.

MR. MANCUS: Anyway, on the second photograph the "IP" stands for he still has it in his possession and the other one I think there's one marked I think it's "NP" that means not possession.

Anyway, all the ones he has drawn an arrow to or line IP that means since December 18th, 2001 to the present they have been in his possession.

THE COURT: Okay.

MR. MANCUS: Is that accepted without his going to the witness stand to testify to that?

THE COURT: That's my understanding of what the photos indicate.

MR. MANCUS: Okay. Now moving on. I'm prepared to call to the witness stand two witnesses and then rest. Both witnesses are here. One of them is named Gary Cockriell. The other one is named Phil Graf. I can either call them and see if Ms. Victor objects or right now assuming she will object on relevancy I can get into making an offer of proof either one or both of them.

THE COURT: Why don't you start with an offer of proof on Gary Cockriell as to what the subject matter is. General.

MR. MANCUS: Okay. And I stress, your Honor, I'm afraid some of this offer of proof might make you upset. If it does --

THE COURT: I just want to hear the evidence.

MR. MANCUS: Okay. As to Gary Cockriell --

THE COURT: Imagine what I'd do if I had a jury and I had to keep saying, "Don't worry about whether I'm upset, ladies and gentlemen of the jury. Disregard that comment."

MR. MANCUS: Okay. As to Gary Cockriell he is present in court. As to qualifications: He's a licensed member of the State Bar of California. He is an attorney, a practicing attorney. He's also a coowner of a gun store in Santa Rosa Sonoma County. He's also a serious very knowledgeable collector of Colt firearms, and the confiscated pistol is a Colt. He also has had training as a gun store co-owner in buying and selling firearms to evaluate current reference to authoritative sources the value of a handgun.

THE COURT: So his testimony would be solely for the purpose of establishing the value of the weapon?

MR. MANCUS: No, not solely for that, your Honor.

THE COURT: All right. Go ahead. What else?

MR. MANCUS: One purpose is the value of the weapon, the handgun. And because offers of proof I understand need to be fairly specific it's my understanding --

THE COURT: Not necessarily.

MR. MANCUS: Okay. It's also relevant for the following purpose: As an attorney he is familiar with the United States Supreme Court decision in United States vs. Miller 1939 decision. The full cite is 307 U.S. 174. That case as the Court may or may not note is the last --

THE COURT: I'm familiar with it.

MR. MANCUS: Okay.

THE COURT: The point is that I think this is the answer, Counsel. The Court does not take evidence for interpretation of law. That's because it's not foreign law. The answer is that when you argue the case, you can ask me to associate in by way of argument and allow him to argue the meaning of any case law that exists. That's not part of the factual evidence.

MR. MANCUS: I think I understand what you said, your Honor. But I also think there might have been a slight breakdown in communication between us. One of my purposes in calling Mr. Cockriell is not to tell you what the U.S. Supreme Court said in U.S. vs. Miller or any other case but simply to tell you based on his excellent command of the history of the 1911 design on which the confiscated Colt Commander is a derivative of and what he knows about that gun, et cetera, that that gun under the facts is at the time it was made and continuing to the present an absolute top of the line modern military, superb quality, superb tested proven design, excellent manufacturer, safe, excellent modern military handgun that would be well-suited for top of the line military forces, excellent common defense of the community, excellent self-defense. And then with that testimony --

THE COURT: I guess my problem with that is as I've previously indicated it's been my view that the sole issue at least the threshold issue is whether Mr. Smith is a danger to himself or others. If I determine that he's a danger to himself or a danger to others, at the level of burden that they have to prove that, then I don't see where there's some value issues I agree. I have reasonably ruled in other cases that where a person is a danger to himself as opposed to danger to others that I see a constitutional problem with confiscating without compensation because I believe that the government has the ability to protect a person from himself which is a social policy. The legislature has established it's not a crime. It's a social policy the legislature's established, but that I don't believe that it's constitutional for a government agency to deprive the person of the value. And so I have ordered in a number of cases that the -- that a matter be sold at fair market sale so the person doesn't lose the value. But we don't get there until the Court makes the first finding.

MR. MANCUS: No. I understand, your Honor. And for what you just said it's what I would expect from a good judge, and I agree with you, and I've already done a brief to submit it.

THE COURT: Why don't we do this: What if we did this: What if we bifurcate the trial. It doesn't mean we're going to come back some other day. Bifurcate the trial, conclude the trial, hear argument on the mental -- the danger to self or others. And if the hearing the decision's in your favor you don't need to go any further. And if it isn't, I'll allow you to consider other evidence.

MR. MANCUS: I understand what the Court's saying, and that's logical, and it's almost a hundred percent acceptable, your Honor. But I have one other major element of offer of proof for Gary Cockriell.

THE COURT: Go ahead.

MR. MANCUS: Again, I'm afraid this might get the Court upset. I'll be brief. I don't know how much the Court knows about handguns and this particular type of handgun. Mr. Cockriell has brought a very authoritative schematic professionally drawn enlargement of all of the parts for the 1911 which is basically the Colt Commander --

THE COURT: I understand.

MR. MANCUS: -- which is just a little bit smaller. And as you know Evidence Code Section 210 bears on relevancy the issue of the credibility of witnesses as I understand the Evidence Code and commentaries, et cetera, is always an issue is always relevant. And BAJI 2.20 talks about existence of bias and all that in evaluating the credibility of a witness.

I'm going to make a linkage between the inherent qualities of the 1911 Colt Commander design and what Officer Terry testified to and what was in his declaration and report and what Mr. Smith has testified to. And here's how it's all related. And I want to back up a little bit and say the following: First of all, I personally I professionally I as an advocate of Mr. Smith and Mr. Cockriell none of us are saying that Officer Terry committed perjury or is a liar or corrupt or anything like that. However, what we -- what Mr. Cockriell is prepared to give testimony I mean give testimony to the following effect of his own personal knowledge because he sells a lot of guns handguns to a lot of police officers in Sonoma County, he's talked to them, he knows a lot of very good high competitive quality competition shooters, et cetera, that all 1911 designs especially those made by Colt were people who know they have a good command of handguns. They know that the confiscated pistol is a very high quality item. It's kind of like a Mercedes Benz of handguns. That's number one.

Number two, there's only one or two parts that have a -- have the Colt manufacturer serial number on the part. The only -- everything else is interchangeable with all of the other millions upon millions of 1911 designs and derivatives made.

If the Court were to order this gun to be destroyed and if Officer Terry and/or the police department or somebody else is not totally legitimate, totally honest, subject to the Court's ordering that pistol -- ordering Mr. Smith's confiscated pistol to be destroyed and an unscrupulous officer, Officer Terry or somebody else, could superficially comply with your order by doing the following: Destroying --

THE COURT: My imagination isn't that weak. I certainly understand that if this unique parts and values are there there's the risk of the legality if you will.

MR. MANCUS: But they could just destroy the part with the serial number, keep everything else, and under the current law a police officer, a law enforcement officer and only a law enforcement officer could buy the part with a new stamp number, keep all the other parts, switch out stamp parts, and that officer under color of law if he wanted to be a thief by making --

THE COURT: I understood that. It didn't take me that many hot stops to understand what you were saying.

MR. MANCUS: And second because all these parts are interchangeable if an officer were to retain this gun despite a court order to destroy it, if an officer who used this type of a handgun got involved in a questionable shooting, and if he wanted to escape being identified as the bad shooter by switching parts with extra parts he would have by keeping his handgun and not getting destroyed, he can change the ballistic signature of the gun he kept to hide up the fact that he fired off a round illegally, you know, hit somebody, wounded somebody, killed somebody, and operating as an on-duty officer or as the civilian.

THE COURT: You know, Counsel, listen, I got until 11:00 o'clock today. We've spent the last 20 minutes without a single bit of evidence just arguing about the case how we're going to proceed.

MR. MANCUS: We did save a lot of time with Mr. Smith.

THE COURT: Maybe we did. What you've just indicated still seems to me to be appropriate for bifurcation. If the Court found in your favor after argument --

MR. MANCUS: But the reason -- I understand that. Just a couple sentences -- the reason I bring up this issue of credibility is if you -- even if it was bifurcated and you making the decision whether or not Mr. Smith is a danger or not you're going to be weighing Officer Terry's testimony against the four mental health care providers two of which are County, et cetera, and the conflict between what Officer Terry said and what Mr. Smith said.

Mr. Smith said, "I told the officers I have five guns in the house. I told them where they all were." They went looking for them and they only confiscated the one which we contend is the best one from a policeman's point of view. The one that all these things could be done and that could bear on his credibility as to why he didn't take the other four. That's one thing.

Second, Officer Terry in his declaration that he signed under penalty of perjury which was attached to Ms. Victor's petition to destroy this gun -- and I presumed the petition was prepared by her for Officer Terry to sign -- he said Mr. Smith denied threatening suicide to his family. And he doesn't put any other words in that petition. I mean in that declaration in Mr. Smith's mouth and that part all of Mr. -- all of Officer Terry's declaration is a hundred percent consistent with Mr. Smith's testimony. He denied threatening suicide.

MS. VICTOR: Your Honor --

THE COURT: I can see you're upset, and you should be. I just find it incredible, Counsel, that one would try to argue one's case right in the middle of a case while making an offer of proof. That's terribly unfair to the other side. What is she supposed to do?

MR. MANCUS: I apologize since that's apparently how the two of you see it.

THE COURT: How could anybody see it any other way? That shows this. It shows that. I mean come on.

MR. MANCUS: I'm just trying to show --

But my point is, your Honor, I would hate to -- I mean I'm willing to agree to bifurcation to try to speed everything up, but I would hate to --

THE COURT: You don't have to agree. I have the power to order it.

MR. MANCUS: I know I don't. Well, I would just hate to have the Court factor in the credibility of Officer Terry without hearing this part of evidence. But since I've made the offer of proof on that you heard it.

THE COURT: Let me ask, Counsel, what is your position on the relevance of the last point of testimony that that is there could be testimony offered from which a motivation of bias could be established regarding the testimony?

MS. VICTOR: One, this is an expert witness. He's not a percipient witness. There's no evidence that's been presented to this court that permits the Court to make that inference. The Court can exclude it on I believe it's 352 more prejudicial than probative, more time consuming than probative, to allow this testimony to come in. It's completely irrelevant. It's --

THE COURT: Do they not have the right to urge the Court that the testimony of the officer is fabricated for the purpose -- if they want to argue that the testimony is fabricated, don't they have the right to put on evidence that would establish what motivation there might be to fabricate?

MS. VICTOR: Your Honor, it's completely speculative in terms of what the motivation is.

MR. TOWNSEND: There's no probative value in that testimony.

MS. VICTOR: It's completely --

THE COURT: What if the only evidence they had was that the officer after he left the scene with the confiscated pistol took it to a gun shop and got an appraisal and the appraisal was $10,000?

MS. VICTOR: What if they had that evidence?

THE COURT: Wouldn't that be admissible to show possible bias?

MS. VICTOR: But, your Honor, that didn't happen. So --

THE COURT: They just got a different theory.

MS. VICTOR: They have a theory, but they have no evidence. It's -- all they want to do is they want to say that this is a gun that cops like. What probative value does that have? And he's speculating Officer Terry is going to be involved in a bad shoot sometime in the future and use parts of this gun to hide the crime. I mean there's no evidence there. It's just completely speculative.

MR. TOWNSEND: The offer of proof has not demonstrated that there's any evidence of these things.

THE COURT: So you won't stipulate to it?

MS. VICTOR: No.

THE COURT: Objection's overruled. I'll allow the testimony.

Call the witness.

MR. MANCUS: Thank you, your Honor.

MS. VICTOR: Your Honor, may I clarify?

THE COURT: No. The objection's overruled. We're calling the witness. Next witness, please.

MR. MANCUS: Gary Cockriell.

GARY COCKRIELL,

called as a witness on behalf of the Respondent,

being first duly sworn by the Clerk, testified as follows:

THE CLERK: Please be seated.

State your name and spell your last name.

THE WITNESS: Cockriell, C-O-C-K-R-I-E-L-L, first name is Gary, G-A-R-Y.

THE COURT: All right. The Court's going to order the matter bifurcated as to the issue of what should be done with the gun in the event that the Court determines that Mr. Smith is a danger to himself or others. I will allow testimony that might impeach any evidence that was offered limited to that in this phase.

MR. MANCUS: In the interest of trying to conserve time, your Honor, as long as I don't abuse it too much is it okay if I start off with some leading questions?

THE COURT: Any objection? Well --

MS. VICTOR: Your Honor, if it's just to lay a foundation that he's an expert, fine.

THE COURT: It's her that makes that choice. Not me. Let's start and try go ahead.

MR. MANCUS: Okay.

DIRECT EXAMINATION

BY MR. MANCUS:

Q. Good morning, Mr. Cockriell?

A. Good morning, Mr. Mancus.

Q. Are you apparently a licensed member of the State Bar of California?

A. Yes, I am.

Q. Do you practice law?

A. Yes, I do.

Q. Are you also the co-owner of a gun store in Sonoma County.

A. Yes, I am.

Q. And the name of the store is?

A. Helm's House of Guns.

Q. And what's the street address?

A. 880 Piner Road number 52.

Q. Are you also a serious long time collector of Colt manufacturer brand handguns?

A. Yes, sir.

Q. Including the 1911 design?

A. Yes, sir.

Q. And derivatives of the 1911 design?

A. Yes.

Q. And how long have you been interested in such Colt handguns?

A. 25 years or slightly longer.

Q. Do you consider yourself well-read of the 1911 Colts?

A. Yes.

Q. Have you also had training in how to evaluate current reasonable fair market value of firearms?

A. Yes. I've had no formal training, but I've had experience training from working two years in a gun shop. My mentor has been doing this for about 20 years.

Q. Is there one or more books that are considered authoritative bibles, recognized authorities that track the reasonable fair market value of handguns?

A. Yes, there is.

Q. Did you bring one of those books with you?

A. Yes, I have.

Q. And could you please state out loud the title of the book, the author of the book, and the ISBN?

A. 23rd Edition Blueboook of Gun Values by SP Fjestad, F-J-E-S-T-A-D.

And the other number you referenced?

Q. The ISBN number?

A. Yes. 1-886768-31-5.

Q. Have you read Mr. Smith's declaration on file with the Court?

A. Yes, I have.

Q. Did you read what he said about describing the history of his confiscated Colt and the qualities of it?

A. Yes.

Q. Based on that alone without seeing the gun and your knowledge and training do you have an opinion as to the range of value for that handgun?

MS. VICTOR: Your Honor, objection. I thought that this testimony wasn't going to go to value.

THE COURT: I think he's being offered solely for the bias issue. I'll allow it for the bias issue only

MR. MANCUS:

Q. You may answer, Mr. Cockriell.

A. Yes.

Q. What is your -- based on your training and how Mr. Smith described his confiscated Colt what's your opinion of the range of the value of the gun?

A. The range of value that I looked at considering I have not been able to see the gun based on the description of it, the fact that it's satin nickel I determined it's to be what is considered a Combat Commander. If it was in 80 percent condition which references basically wear in finish Bluebook value is $450 up to about 95 percent condition which would be exceptionally good condition for a gun of this aiming at $625. And the model also is available in satin nickel finish which is a scarce finish, so that would add some value so. Somewhere in the range between 450 and $625.

Q. Okay. Have you personally sold this type of 1911 type design to various law enforcement officers?

A. Yes, I have.

Q. Do you have an understanding of how popular this type of gun is for law enforcement officers?

A. It's probably the best weapon for specific types of law enforcement officers, ie., SWAT teams, police officers who are the most highly trained in the most danger situations prefer this weapon because of its accuracy and its power.

Q. Did you bring with you any kind of a professional schematic enlargement blowup of the various parts that a 1911 --

A. Yes, I have.

MR. MANCUS: May I approach the witness, your Honor?

THE COURT: Yeah.

MR. MANCUS: Since the clerk is not here can we just consider this to be the next exhibit in order?

THE COURT: I got a problem with -- we've got his testimony. We don't even know if it's going to be contested testimony. I just wonder what this adds.

MR. MANCUS: It's just that this just illustrates, your Honor, that it has a bunch --

THE COURT: In case I don't believe him is that what you're suggesting?

MR. MANCUS: No. No. Just serves to illustrate, you know, and confirm part of the offer of proof.

THE COURT: That will be marked next in order.

MR. MANCUS: Okay

Q. Mr. Cockriell, is that exhibit whatever numbers --

THE COURT: Five

MR. MANCUS:

Q. -- 5 -- we're going to call this Exhibit 5 -- is in your opinion Exhibit 5 a true and correct accurate representation of the parts of the basic 1911 .45 auto manufactured Colt.

MS. VICTOR: Objection, relevance.

THE COURT: Overruled. I'll allow it.

THE WITNESS: Yes

MR. MANCUS:

Q. Have you personally seen a lot of these?

A. Yes.

Q. Have you personally disassembled them and reassembled them?

MS. VICTOR: Objection, vague and ambiguous.

THE COURT: Overruled.

THE WITNESS: Would you please --

MR. MANCUS:

Q. Have you personally disassembled and reassembled them?

A. Yes.

Q. And based on all that in your readings do you have an opinion as to how many of the parts in this Exhibit 5 come with some type of serial number on them?

A. I know for a certainty that the frame which is the part that is held in your hand has a serial number. It is possible that one or two other parts may have a serial number referencing the frame either in their entirety or the last couple serial numbers as far as matching parts. But at least one of the parts has a stamp serial number on it which is the frame.

Q. Is the serial number the key for determining the identity of the gun of all the parts assembled together to determine the identity and uniqueness of a particular gun?

A. Yes. The serial number is the reference point for registration purposes. For any other purposes it is the frame it is the registered serial number part.

Q. Is it your understanding that a police officer in the State of California is currently free and has the legal ability to go out and buy the part that has a serial number on it?

A. Yes. There's a law called Senate Bill 15 which is California Unsafe Handgun Act which bans the public from buying the frame only because all handguns must be tested in their entirety. Police officers and, for instance, federal firearms dealers are exempted from that law. So a federal firearms dealer or a police officer can buy the frame part only.

Q. Okay. And if an officer did that, could an officer take the frame part of Mr. Smith's confiscated pistol and substitute a new frame part with a different serial number and reassemble all the other parts together?

A. Yes.

MS. VICTOR: Objection, speculative.

THE COURT: I think he's just asking if it's possible. I'll allow that testimony.

MR. MANCUS: Okay, your Honor, since the clerk is not here and I don't see it, could someone please try to find me the two color photographs.

THE COURT: They are right here.

MR. MANCUS: I can show the witness.

May I approach the witness, your Honor?

THE COURT: Yeah.

MR. MANCUS:

Q. Mr. Cockriell, showing you Exhibit No. 4 do you see what you recognize to be a Colt Commander anywhere in Exhibit No. 4?

A. The pistol in the very very bottom which is silver colored I can't say that it is a Colt because there's no way for me to look and see the Colt designation but it is consistent with a short barrel which is the Colt Commander style 1911 pistol. It is in a nickel finish.

Q. Okay. And given that finish could you please try to do your best to refine the value of the confiscated pistol based on what Mr. Smith told you tied up with what you see in that photograph about the pistol?

A. It's hard to make a judgment on the amount of finish wear. It looks like it's in pretty good shape. So again I would say in that 450 to $625 range. Probably towards the high side because of the rarity of the nickel finish. And it looks like it's in good shape. Probably offset a small amount because the grips are two different wood compositions which tells me one of the grips has been replaced.

Q. As the co-owner of a gun store and as an attorney do you have the ability and the means to buy virtually any handgun that you want that's available on the market for your own personal use as a self-defense handgun?

A. No. I can only buy what is allowed by law under Senate Bill 15.

Q. Okay. Given what you are free to buy for your own personal self-defense what would you buy?

A. My --

MS. VICTOR: Objection, relevance.

THE COURT: Sustained

MR. MANCUS:

Q. From everything you know do you have an opinion as to whether or not a Colt Commander would be a good choice for personal lawful self-defense?

A. Yes, it would be a very good choice.

Q. And just briefly why do you say that?

A. The Colts of that era made in the 1970's were made of the highest quality steal, heat treated, well fitted, accurate, reliable, well-made guns, and during that time period nobody else was making the 1911 style other than the Colt of that high quality.

Q. Is it your understanding that by changing the parts of a pistol a person could change the ballistic signature of another bullet fired from the same pistol reassembled using different parts?

A. Yes.

MS. VICTOR: Same relevancy objections, your Honor.

THE COURT: It's been asked before. I'll allow it. Let's wrap it up.

MR. MANCUS: Nothing further at this time, your Honor.

THE COURT: Any cross?

MS. VICTOR: No, your Honor.

THE COURT: You may step down, sir. Thank you.

MR. MANCUS: Respondent would call Phil Graf to the witness stand, your Honor.

MS. VICTOR: Your Honor, there has been no offer of proof with regard to Phil Graf.

THE COURT: We'll just start and see what he has to say.

Step up here, please, sir.

PHIL GRAF,

called as a witness on behalf of the Respondent, being first duly sworn by the Court, testified as follows:

THE COURT: State your full name and spell your last name please.

THE WITNESS: Phillip George Graf, G-R-A-F.

THE COURT: You may be seated.

You may proceed, Counsel.

Oh, before you start with him, let the record reflect that I was inadvertently wrong on the exhibit number. That exhibit the schematic will be marked Exhibit 6 rather than Exhibit 5. I had thought the two photos were a group exhibit. So this will be 6.

MR. MANCUS: Your Honor, may I have your permission to very faintly write the number 6 on the face of this one?

THE COURT: Sure.

It doesn't have to be faint. We'll cover it up.

MR. MANCUS: I did on the lower right hand corner.

THE COURT: Go ahead

DIRECT EXAMINATION

BY MR. MANCUS:

Q. Mr. Graf, are you an ex United States Army officer?

A. Yes.

Q. Were you trained in the infantry?

A. Yes.

Q. Were you in -- what years are you in the U.S. Army?

A. Stretching back around 1961 to '63, '64.

Q. And were you honorably discharged?

A. Of course.

Q. When you were in the U.S. Army, did you receive U.S. Army training in the 1911 handgun design?

A. I not only received training I gave training.

Q. And in what capacity did you give training?

A. Well, various. When I was in the 82nd Airborne, I was the armorer for my platoon. So from time to time we have to instruct some of the troops. And later on my last duty stationed at Fort Ord I was a training officer in basic and advanced infantry training. So all handguns including the .45.

Q. Did you say you were your unit's armorer?

A. Armorer, yes.

Q. Can you briefly define that term?

A. Well, the armorer typically has gone to a school to train on the various weapons that the TOA, Table of Organization, equipment weapons which is by the platoon. So they typically at that time the weapons are different than they are today, but that would include the M1 Garand, the M14, .30 caliber light machine gun, the .45 Colt ACP, Automatic Colt Pistol. Even bayonets.

Q. When you were in the audience, did you listen carefully to the questions that I posed to Mr. Cockriell?

A. Yes, I did.

Q. Did you listen carefully to his answers?

A. Yes.

Q. In the interest of saving time if I were to ask you the same line of questions about value and about use fullness and effectively as a self-defense weapon and a desirability from the point of view of a police officer and quality of manufacturer and, et cetera, would your answers be substantially the same?

A. Yes, they would.

MR. MANCUS: In the interest of trying to save you time, your Honor, if that's acceptable to the two of you, I will forgo any further direct examination.

THE COURT: Any cross-examination?

MS. VICTOR: No, your Honor.

THE COURT: You may step down. Thank you.

Any further witnesses?

MR. MANCUS: No, your Honor.

But I would move to introduce number 6 into evidence.

THE COURT: There's no objection?

MS. VICTOR: Objection. No foundation and irrelevant.

THE COURT: I think it goes to weight. It will be admitted.

(Respondent's Exhibit 6, previously marked for identification, was received in evidence.)

MR. MANCUS: Also, your Honor, I think I forgot I think Mr. Cockriell brought photocopies of the relevant pages from the book.

THE COURT: Those are inadmissible except if they are cross-examined on, and they weren't.

MR. MANCUS: Okay.

THE COURT: Under the Code the direct witness can give his opinion and tell us that he relied on a book, but that's hearsay.

MR. MANCUS: All right, your Honor. Nothing further, your Honor.

THE COURT: All right. Any rebuttal witnesses?

MS. VICTOR: No, your Honor.

THE COURT: All right. We'll hear argument first from the City.

MS. VICTOR: Okay. Your Honor, we filed a brief on this matter, and I would like that to be considered as also part of our argument.

THE COURT: I'm familiar with it.

MS. VICTOR: I'm sorry?

THE COURT: I'm familiar with it.

MS. VICTOR: Okay. There's several facts I want to point out is that on the date in question which was December 18th, 2001 he did say, "I'm going to take a gun and shoot myself." Was carrying a gun in a glove box of his truck. He so he had the means to do so.

He -- Officer Terry testified on the stand that when Mr. Smith was confronted with these statements, he did admit to Officer Terry that he had threatened suicide and had considered suicide. The psychiatrist, Doctor Victor, who came in to testify he basically I think the evidence that was allowed in through the psychiatrist was more damaging to Mr. Smith's case than helpful. Basically what came out is that he has untreated marijuana, daily marijuana use and untreated daily methamphetamine use. That he's been unemployed since the date of the incident. That he's not been to anger management since the date of the incident. The psychiatrist testified that -- and this to me was really the highlight of Doctor Victor's testimony -- he said that Mr. Smith does have an anger management problem if he perceives authority to be arbitrary.

The evaluation -- Doctor's evaluation was extremely short in terms of his ability to really evaluate this patient. It was between all the documents and then actually talking to Mr. Smith less than six hours and I would submit, your Honor, that just the documentation that was submitted on this case would take several hours to read. Mr. Smith has been completely unrelenting through this whole process. There's been -- he was very angry on the stand. He's been angry throughout these proceedings.

And with regard to the confiscation of the gun: And it is not clear that the basically the issues that lead to the incident have been resolved or there's been any attempt to resolve them in any way.

Lastly, I think that the Court -- and the Court knows this -- the Court only gets these cases filed by the police departments when the patient hasn't been admitted. So that's when we file when there's been no admission to the hospital. And we ask the Court to make the determination whether a danger to himself or others. So it's largely irrelevant that the doctors at that time deemed not to admit him because at least under it doesn't affect the law is what I would suggest to the Court. Is that this comes to the Court for the determinations in those cases.

Other than that, your Honor, I would submit on our brief, and the Court certainly observed all the testimony today, and I think there's sufficient evidence in the record to find he's a danger to himself and others.

THE COURT: All right. Because the Court intends to rule in favor of Mr. Smith I am not going to ask for oral argument from Mr. Smith's side because that would be kind of meaningless.

Let me explain how I reach my ruling in favor of Mr. Smith. I believe that the issue of whether a person is a danger to himself or to others are really two tests even though it's in the same sentence in the statute. I think the Court has to ask oneself separate questions. Number one, is he a danger to himself? Number two, is he a danger to others?

While both have been raised by the City in the case I think the City has failed to meet the burden of proof that is at least that Mr. Smith's side has taken the burden of going forward after the burden of proof evidence has been presented by the City and has outweighed it in both instances.

The first instance is whether he's a danger to himself. It was in the area of danger to himself that the psychiatric testimony it seemed to me was rather clear and convincing that Mr. Smith whatever his state of mind on December 18th of 2001 is in a state of mind at this point in time and throughout the trial including the first part of the trial that he no longer is a danger to himself by using a handgun to take his life or injure himself.

The -- I won't list off all the evidence. All sides have heard it, but there was very significant evidence I. Believe that the evidence supports a conclusion that he is not a danger to himself. And I'll include in that the conclusion that there's no evidence before this Court that from which a court can conclude that a person that has anger and I agree there has been evidence of anger on Mr. Smith's part that's been unnatural or unusual, but there's no scientific or medical evidence that anger either played a part in what occurred on December 18th or would play a part in his injuring himself.

And I think we even all know that if one follows the course of suicides in our community or larger area that it's rarely angry people that do that. It's depressed people that do that. And it was the evidence on depression that I think was the most significant. There's nothing in the law that I know of that says a habitual drug user, without getting into the social policies and the issues of whether it's wise or unwise, legal or illegal on Mr. Smith's part to partake with either marijuana or methamphetamine, there's no evidence, scientific or medical, before the Court that either of those drugs has a propensity to cause one to harm oneself with a weapon.

And so on that basis I have concluded from all the evidence that Mr. Smith is not a harm to himself. I want to make it clear that I accept as at least probative the officer's view that there was the event. In fact, the event really is hardly denied. The specifics of it in some ways are an issue, but for the most part the event is not denied.

But assuming the existence of the event and even assuming that it occurred as the officer indicated -- and I don't make a finding whether it did or didn't -- two witnesses can see things differently as we know from the regular BAJI instructions to juries about witnesses -- but I find that unimportant because if you accept Officer Smith and I'll make a finding that there's totally insignificant evidence to conclude any wrongful intent motive or bias on the part of the officer, and I will make a finding that he has given us his best recollection in an honest fashion. But beyond that and I have taken the evidence that was given this morning regarding the value of the gun and how an officer might want it. I concur with the City it's pure speculation. And the demeanor and all of the testimony of the officer was such that I would conclude that he gave his best testimony as he perceived it whether it was accurate or not.

Assuming that every word of his testimony was accurate in my view that creates a starting rebuttable presumption that a person is a danger to himself. That is that he has had a suicide episode but that danger question is before the Court that when you hold the first day of hearing as to whether that is still the state of mind. The statute uses the pretense, and it has been my ruling for four years now that the issue before the Court is not was he a danger to himself on December 18th but is he a danger to himself when the Court make its ruling. And whether you use the first day of hearing or the last I conclude from the medical evidence that he's not a danger to himself.

Now, we have the second question that is whether he's a danger to others. The episode that brought the case to court was created no indication of danger to others. I don't think that one can take a case where someone had some depression and some suicide tendencies that might have created enough to get to court and have a case win or lose and look at it and say, "Well, if that happened and we know that the person has an anger toward society, he's a danger to society." I don't think that there has been any professional evidence or any evidence from which I can draw that conclusion.

Do I as a citizen concern myself that people have weapons and are angry at society? You bet I do. Big time. But I'm not the legislature, and I don't think I have the power without the evidence that he has acted upon that. I mean there are lots of people out there, you know, standing on soap boxes and making speeches against the government or standing in my courtroom and making speeches against me and the government or perhaps coming in for jury duty and telling us they don't belong on the jury because they hate the way the government does everything, and they couldn't be a fair juror. All of those people, some of them probably have guns. Whether it's constitutional for the legislature to outlaw people in that situation having a gun is not before me because the legislature has not done so. The legislature has not attempted to bar people that have an anger or have indicated an anger towards government from holding a weapon.

So I see no linkage between the suicide episode that's been put before the Court back in December and the anger that he has towards the government which is well-represented in a number of aspects including his declaration. But I find that the law does not prohibit one with that state of mind from having a weapon.

I find no other evidence that he's a danger to others, and on that basis conclude he's not a danger to others. Since he's not a danger to himself and he's not a danger to others he's entitled to have his gun returned to him without any concern of the further issues of how confiscation would occur if it did.

That will be the Court's ruling. I'll ask Counsel to prepare an appropriate order short and brief, submit it to the City. And if there's a dispute about the order, I'll have a hearing on it.

MR. MANCUS: May I just briefly be heard, your Honor?

THE COURT: There's nothing to be heard on.

MR. MANCUS: Could you give me one second to clarify something?

THE COURT: You'll need more than one second. No sentence can be said in one second.

MR. MANCUS: You're correct.

One minute.

What was confiscated was the pistol, three magazines, 26 cartridges, and a holster.

THE COURT: Everything that was confiscated is being returned.

MR. MANCUS: Okay. Would the Court be willing to order that he can go to the police department retrieve those before the order is signed?

THE COURT: The methodology by which the police follow the Court's order is to be worked out with them. We don't -- that's not before the Court.

MS. VICTOR: Counsel, prepare the order, send it. It can be done very quickly.

MR. MANCUS: Okay.

THE COURT: You should be talking a matter of days.

MR. MANCUS: Okay. Thank you, your Honor.

THE COURT: Thank you.

MR. TOWNSEND: Thank you, your Honor.

THE COURT: Can we have a stipulation the exhibits that were presented 1 through 5 can be returned to Counsel for Mr. Smith?

MR. TOWNSEND: Yes, your Honor.

MS. VICTOR: Yes, your Honor.

THE COURT: That will be so returned with the usual order that you retain them through the time of any posttrial proceedings.

MR. MANCUS: Thank you, your Honor.

(Whereupon, the proceedings were concluded)

---o0o---

REPORTER'S CERTIFICATE

State of California )

) ss.

County of Contra Costa )

I, ALLISON H. SANTIAGO, Certified Shorthand Reporter, do hereby certify:

That I am the reporter, duly appointed and sworn, who reported the above and foregoing proceedings at the time and place therein stated,

That I reported the said proceedings; and that the foregoing pages are a full, true, complete, and correct transcript of my shorthand notes taken at said time and place to the best of my ability.

ALLISON H. SANTIAGO, C.S.R. #9833



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