City of San José v. Henry Nolasco CASE NO. 19CV353081
DATE: 28 January 2020 TIME: 9:00 AM LINE NUMBER: 7
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on Monday, 27 January 2020. Please specify the issue to be contested when calling the Court and Counsel.

ORDER ON PETITION OF CITY OF SAN JOSE FOR DISPOSITION OF WEAPONS

I. Statement of Facts.

On July 8, 2019, officers from the San Jose Police Department were dispatched to a residence in San Jose, California on a report of a mentally disturbed person, Henry Nolasco (“Respondent”). The reporting party, Respondent’s wife, stated that Respondent wanted to kill himself with a gun. Petitioner’s papers state that, according to Respondent’s wife, they are going through a divorce and they were arguing.

Janelle Silva, a Public Safety Dispatcher with the San Jose Police Department (“SJPD”) declares under penalty of perjury that at approximately 10:26 p.m. on the day in question, she received a telephone call from an individual who was later identified as Veronica Cendejas, who reported that her boyfriend was trying to shoot himself with his gun. A true and accurate copy of the audio recording of this telephone call is attached to her declaration.

SJ PD Officers Josh Charles Faulkner and Carrie Gordon declare generally that Respondent stated: “I shouldn’t have said what I said. It sounded like I was going to kill myself with the fucking gun.” Respondent further elaborated that he and his girlfriend had been in a relationship for approximately three years and they were going through a break up and moving out of their shared apartment. Respondent stated that the two children on the scene were his girlfriend’s and not his. Respondent told the officers that he that he had previous arrests for “weapons and drugs.”

Based on the statements made by Respondent’s wife/lady friend, officers believed Respondent to be a danger to himself as a result of a mental health condition. The Respondent was transported to Emergency Psychiatric Services at Santa Clara Valley Medical Center for a mental health evaluation.

The petition lists firearms that are sought to be destroyed.

Mr. Nolasco filed an answer to the petition. He says that the complaining party was not his wife. He states that after an argument, he grabbed some of his belongings to leave, including a firearm but not ammunition. He told the police that he was in the stable mental condition and that emotions were just running high. He willfully submitted to a mental evaluation, and mental health services That said nothing seemed wrong and there was no reason to keep him. He is on good terms with the complaining witness and she will testify about the miscommunication and argument.

II. Discussion.

The City of San Jose petitions the Court to order that the San Jose Police Department retain possession of the weapons police officers seized from the Respondent and to order the weapons 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 examination of his or her mental condition.” (See Cal. Welf. & Inst. Code § 8102(a).) 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 (c).)

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 the 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 of 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 on his mental condition may also rely on 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 of San Jose, as the relevant “law enforcement agency”, requests that the Court order the Respondent’s weapons forfeited because his suicide threat and related contact with San Jose police officers on July 8, 2019, demonstrate that he is a danger to himself. Return of the Respondent’s weapons would therefore “be likely to result in endangering [Respondent] or others” within the meaning of Section 8102.1

The City of San Jose cannot yet confirm whether the Respondent has been officially admitted to a mental care facility as described in Section 8103. The City of San Jose reserves the right to rely on this ground for forfeiture in the event that the 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.

Based upon the above, the City of San Jose requests this Court to order the Respondent’s weapons forfeited to the San Jose Police Department. The City of San Jose further requests that the Court’s order reflect that the San Jose Police Department may destroy the weapons within 180 days unless the Respondent facilitates its sale or transfer as outlined in Section 8102(h).

Finally, 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 Jose Police Department make Respondent’s weapons available for his resumed possession. To retake possession of the weapon, Respondent would be required to establish legitimate ownership and related requirements as outlined in Section 8102(d). If Respondent has been convicted of a felony, he may not be able to lawfully possess the firearms in the first instance.

III. Order.

This Court may take evidence to properly resolve this matter.

_______________¬¬¬____________

DATED: ______________________¬¬¬________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara