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Jury finds teen did not try to kill officer

SANTA ANA – Believing that a teenager involved in a shootout with Fountain Valley police officers was mentally ill, an Orange County jury has found him not guilty of charges that he attempted to kill a policeman in the December incident.

The panel of three men and nine women found David Vinh Dinh not guilty Friday afternoon of attempted murder and assault with a deadly weapon on a police officer, burglary and false imprisonment.

Jurors instead found Dinh, who was 17 at the time of the incident but was charged as an adult, guilty of lesser charges, including attempted voluntary manslaughter and assault with a firearm.

Superior Court Judge Gary Paer will sentence Dinh on Sept. 9, when he faces anywhere from 4½ years to 16 years in prison, his attorney said.

Had he been convicted on the greater charges, Dinh was looking at a minimum of 45 years to life in prison and would not have been eligible for parole for more than 40 years, defense attorney Lew Rosenblum said.

"This means the potential that he could be out in five to seven years as compared with looking at the rest of his life; that's huge for me," said Rosenblum on Monday. "The fact that he could still have a life rather than having to go through parole hearings is a major accomplishment."

Deputy District Attorney Lynda Fernandez could not immediately be reached for comment.

The defense offered a "potpourri" of defenses, hoping something would stick with jurors, she said in her closing argument in the case.

Rosenblum told jurors in closing arguments that the prosecutor "gambled" in a case that was not provable. She gambled with his client's life, he said.

"There's just so much doubt in this case that you cannot find him guilty of anything except of false imprisonment," he told the jury.

His defense: Dinh was a bipolar 17-year-old and on the day of the incident thought he was on a CIA spy mission.

An exchange of gunfire at an apartment complex in which Dinh fired four shots – one as a warning and the other three into the ground – from an AK47 occurred not because he wanted to kill anyone, but because he felt threatened and wanted to get away.

The prosecutor told jurors that Dinh, now 18, knew exactly what he was doing, was lucid, armed himself with the assault rifle to shoot and kill a police officer, was not mentally ill and just because he did not hit an officer does not mean he's not guilty.

"Defendant's actions and words prove he intended to kill when he shot at (Fountain Valley police) officer (Richard) Nilos," she said. "Just because they're throwing up this bipolar flag doesn't mean ... you have to buy into a bunch of baloney. ... Bipolar does not equal not guilty, it's not a get out of jail free card."

"Nobody is asking for get out of jail free card, all I am asking is for a fair trial," countered Rosenblum, saying from a police radio transmission and prior contact with his client, officers knew they were dealing with someone with a mental illness. "The prosecution had a trial strategy here, but it backfired on them ... to keep this mental health issue from you."

Police said at the time Dinh fired a weapon at them after threatening a resident in his home.

The exchange of gunfire took place while officers were responding to a burglary in progress report at the Corte Bella apartments in the 9600 block of El Rey Avenue.

Officers met with a resident who reported that the teen had forced his way into his apartment and was armed with a handgun, which turned out to be an airsoft gun.

Inside the home, Dinh found a weapons cache and picked out the biggest gun, the assault rifle, and contemplated his situation, prosecutors said.

He opted to engage officers, Fernandez said, because he told investigators in an interview he figured at that point he had already committed a felony by breaking and entering and brandishing his airsoft gun and would end up in Juvenile Hall for six months.

Officers set up a perimeter around the complex. Before they could contact the teen, he came out of the apartment with a rifle and ignored officers' demands to drop the firearm, police said at the time.

The prosecutor said he fired at least four shots at police, including Nilos, who thought he was going to be killed.

Four officers were involved in the shooting, police said then, but the teen fired only at one of them.

"The jury believed and understood my client thought that the person hiding behind the tree (at the complex) wasn't a police officer and was the occupant of the house," Rosenblum said.

Dinh underwent surgery for multiple gunshot injuries – he was struck by more than 30 shotgun pellets. No officers, neighbors or bystanders were injured.

"The jury understood that his mental illness was legitimate and it impacted his ability to form the intent that the prosecutor alleged, the intent to commit the crime of murder" and other charges, Rosenblum said.

For safety reasons, town bans BB guns except in back yards

Tin cans, glass bottles, robins, lizards and other such small targets can heave a tiny sigh of relief. The Payson Town Council just banned BB guns and airsoft guns.

Well, not completely. To be specific, stick to your own back yard if you want to pop off any kind of pellet, airsoft or paintball guns in the town limits.

And make darn sure that those airsoft BB's don't cross the property line.

Last week, the Payson council adopted Ordinance 805, which bans any “air, gas-operated, electric, or spring-operated gun, commonly referred to as BB guns, pellet guns, airsoft guns, paintball guns, or similar instruments.”

The law recognizes two exceptions.

You can fire off the aforementioned deadly weapons on private premises with the permission of the “person in lawful possession of the gun” — so long as the “projectile fired or discharged does not leave the grounds or premises.”

The law also makes an exception for an organized meet or shooting match on private “grounds or premises” with the permission of the “owner or controller” and a note from the chief of police.

Oh. Yeah: One more exception.

A “government agent” can still plink away any darn place he wants in “furtherance of his duties.”

The council held two hearings on the proposed airsoft BB gun ban before voting unanimously to approve the new law last week.

The only citizen to testify supported the prohibition, saying plinking kids with airsoft guns in her neighborhood had created a major problem.

So much for Wild West airsoft plinkers in the home of the World’s Oldest Continuous Rodeo.

Good thing the council didn’t go after Colt .45s and deer rifles.

And a good thing they didn’t ask the Arizona Legislature for permission.

After all, this year the Legislature approved laws that would overturn city ordinances banning hunting in the city limits, make it easier to get a permit to carry a concealed firearm, allow firearms in national parks and wildlife refuges, and make it easier for people with a history of mental illness to regain their right to carry a gun.

The Legislature said colleges can’t prevent faculty members from bringing a gun to work and insisted towns can’t ban guns from public buildings unless they provide metal detectors, a guard, and a lock box for people to drop off their guns while they visit with the town council.

But at least Payson’s got the whole airsoft BB gun situation under control.

California SB 798

SB 798 UPDATE – Raise Your Hand If You Trust Kevin de Leon

On June 29, Senator Kevin de Leon altered Senate Bill 798, performing a legislative maneuver aptly referred to as a “gut-and-amend.” The “gutting” involved completely deleting the language of the proposed legislation we in the airsoft community had so vehemently opposed, and amended it by simply replacing it with the following language:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 53071.5 of the

Government Code, as amended by Section 1 of Chapter 607of the Statutes of 2004, is repealed.

SEC. 2. Section 53071.5 of the Government Code, as amended by Section 35 of Chapter 178of the Statutes of 2010, is repealed.

That’s all of it; just two apparently redundant lines. But, as the old expression tells us, “the devil is in the details.”

The California Government Code section being repealed by SB 798 says, in relevant part:

53071.5. By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined [in the California Penal Code], and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles described in . . . the Penal Code.

In plain language, this section currently prevents local governments such as counties and cities from making their own regulations “relating to the manufacture, sale or possession of imitation firearms,” reserving that right to the sole jurisdiction of the California Legislature.

By repealing Government Code Section 53071.5, SB 798 would open the door for cities and counties to make their own rules regarding “BB devices and air rifles.” Interestingly, this could include paintball markers, since one of the sections referenced by Government Code Section 53071.5 (and therefore defining what devices fall under its purview) is Penal Code Section 16700(a). In that section, “imitation firearm” is defined to include BB guns and any “other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the devices is a firearm.”

I’m not an attorney, but that certainly sounds like a description of many paintball markers currently being sold.

By the way, contrary to what some are reporting, the repeal of this section does not appear to affect firearms, which are covered under Government Code Section 53071 (only non-firearms are listed by reference in the “point five” section targeted by de Leon for repeal).

So what is Senator de Leon up to? Was he inspired by the June 21 hearing at which Assemblyman Curt Hagman asked him why Los Angeles couldn’t just make its own ordinance and leave the rest of California alone? Or is he setting the stage for something else?

The bigger question: do you trust his intentions? Unless you can answer that with anything but “NO,” you need to continue calling the members of the California Assembly.