It’s not just cops who can confuse real guns with toys, and last week a crafty defense lawyer used a toy gun to get serious gun charges against his client thrown out of court.
On February 21st in front of the Catholic church in Covelo, three impious men converged, one of whom, Miguel “Kiko” Delgado, allegedly pulled a gun on Daniel Hernandez-Sanchez and Juan Rodriguez-Flores. Delgado charged the weapon by pulling back the slide and releasing it. He then pointed it first at Flores, then at Sanchez.
A crime seemed to have been committed — Penal Code 422, assault with a deadly weapon, a firearm.
But was it a real firearm? One that goes bang-bang and makes you dead?
When Deputy Sergio Chora visited Delgado’s home and asked Delgado if he had any firearms, Delgado turned over a toy pistol with a moveable slide. This replica gun was shown to both the alleged victims, and both said No, that’s not the gun. The one Delgado had pointed at them was a real gun, they insisted, like the kind the officers carry. Victim dos, Mr. Sanchez, called Delgado's gun a ‘nine,” meaning a nine millimeter.*
Neither the prosecutor, Deputy DA Maria Gershenovitch, nor Judge Ann Moorman understood this subtle distinction. There is a demographic in Mendocino County recently branded by Newsweek Magazine as “the odious Nice People” who will not like to hear that boys are more adept than girls at recognizing firearms. But the efforts of these two women to grasp how the men knew for certain the difference between a real gun and a toy left the men and boys in the room, by turns, incredulous, delightfully amused and, finally, dismally bored. It was like asking a girl how she could tell the difference between a doll and a real baby.
A working slide on a toy gun is equivalent to a doll that emits wails and tears. Any ten-year-old boy knows that the muzzle is the business end of a gun and the bore of a gun refers to the inside of the barrel, just like any girl knows whether a baby needs to be burped or have its diaper changed. Here’s what it sounds like when both muzzle and bore are simplified and effeminized to their lowest common denominator: Hole.
Gershenovitch: “Can you tell me, Mr. Sanchez, is there a hole in a real gun?”
Of course there are a great many holes in a real gun. There are holes for various screws, the hole in the handle where the magazine is inserted, a hole in the trigger guard for your finger, and half a dozen holes in the cylinder of a revolver, to name a few. So as the witness ponders how to answer this vague and misleading question, he begins to look like he doesn’t know what he’s talking about. Finally, the witness grasps that Gershenovitch is referring to the recessed blockage at the muzzle end of the toy gun. But still, how to answer?
Sanchez: “Well, not exactly; but, yes, there is a hole in a real gun.”
Defense attorney Brooke pounced on the opportunity to sow more confusion: “Objection, lack of foundation.”
The courts have generally made themselves so dependent on experts and expert witnesses that common sense no longer has much courtroom standing. Foundation is the process of Q&A whereby a lawyer demonstrates her witness’s credentials on a given field of expertise. It is a long, drawn-out, tedious business fraught with mind-numbing absurdities, but it must be gotten through. And the sly Mr. Brooke could hardly contain his anticipation in exploiting the mistakes Ms. Gershenovitch was about to make.
Gershenovitch: “Do you know the difference between a rifle and a hand gun?”
Shanchez: “Well, yes.”
Gershenovitch: “Please tell us what’s the difference.”
Sanchez: “Well, a lot of things.”
Gershenovitch: “Please name them.”
This went on for I don’t know how long, because I left to go for a buffet of waffles and reruns of The Man Show from Comedy Central at the Forest Club across the street. When I returned a half-hour later Sanchez was still trying to tell the court that the gun Kiko pulled on him and Jose was a pistol and it was real. The circles these dudes travel in makes them practical experts in distinguishing between real guns and toys. Pull a toy gun on an experienced thug he's likely to pull out a real gun to show you how much he enjoyed your joke.
Ms. Gershenovitch showed Sanchez the pistol that Deputy Chora had confiscated. It was in a cardboard box designed for a real pistol and marked as evidence, People’s Exhibit Number One. This was all being done through Spanish language interpreters, one for the witness stand, and another for the defendant at the defense table. At one point, Sanchez finally spoke the obvious:
“That pistol in the box, even a child could tell it’s a toy.”
“Lemme see it,” the judge said.
Judge Moorman took the toy out of the box and held it up. From across the room, you could see how brandishing the thing out on the streets might get you killed by a cop. It looked real enough. The judge pulled back the slide and let it snap home. Plastic.
“It sounds pretty convincing to me,” the judge said, laying the pistol aside with a slight shudder.
It is very confusing to women; it would be to anyone not versed in the arcane: A .40 caliber Glock is always a .40 caliber Smith & Wesson and almost impossible to tell apart from a Glock 9mm NATO or a 9mm Lugar, which is also a 9mm Parabellum, and in any event even an expert would have to take the gun in his own hands and look for the engraving or stamp on the chamber, or use calipers to tell the difference. But wait, there’s more: Glock makes 30 models which are divided into the six sub-groups of Standard, Compact, Sub-compact, Subcompact/Slimline, Competition, Longslide. You can also get a Glock in 10 mm (available in several models) which you can’t tell from a .40 caliber even with calipers. But no, the ammo is not interchangeable; the ballistics are different and the gun will jam if you try it.
A judge or a prosecutor, however, is not eager to admit their confusion.
Gershenovitch: “The witnesss said it was a 9mm, just like the officer’s.”
Moorman: “Yes, but the officer was carrying a .40 caliber. Mr. Guzman, please stand up and show us your gun.”
Inspector Mariano Guzman of the DA’s Office stood and drew back his coattails, exposing his sidearm.
Moorman: “Please take it out of the holster, Mr. Guzman. Now, hold it up, and tell us what it is.”
Guzman: “It’s a .40 caliber Glock, model 23.”
Judge Moorman asked Sanchez, “Is that what it looked like?”
Sanchez: “Yes. Just like that.”
Moorman: “But he just told us that’s a .40, not a nine.”
Sanchez looked dejected.
Brooke looked elated.
Gershenovitch looked embarrassed.
Defendant Delgado looked like the cat who ate the canary and saw the dog get punished for it. His crafty lawyer said, “Your honor, the witness doesn’t have the expertise to tell the difference between the exhibit [People’s One] and a real gun. First he says it was a nine, meaning a nine-millimeter, and that it was just like the officer’s—which we now know was a .40 caliber, not a nine at all. If the witness was that much of an expert, why did he say it was a nine?”
Moorman said, “I’m not gonna hold him (Delgado) on the 422 (brandishing a for-real gun); there’s no evidence it was a real gun. We all know what a .40 caliber looks like — the detective just showed us — and the witness said it was a nine-millimeter which looks a lot different, so I’m gonna discharge the defendant.”
Gershenovitch wanted to fall back on a 245 assault charge because Delgado had supposedly raised the gun up like he was going to pistol-whip Sanchez, but there wasn’t anything solid in that either, since the other victim, Mr. Flores, hadn’t remembered the pistol-whip allegation the same way. In the end, all the Deputy DA got was a misdemeanor possession of the brass knuckles which the deputy had found he when patted Delgado down.
The crafty Brooke again raised the foundation objection, slyly noting that this traditional tool of the journeyman thug is no longer made of solid brass, but cheaper alloys of Chinese manufacture. It was touch-and-go for a while, but justice prevailed over technical palaver and the lesser charge stuck.
No big deal, though. As noted last week in Off The Record, realignment and Proposition 47 has turned Covelo into a gangland the likes of which hasn’t been seen in this country since the days of Pretty Boy Floyd, Bonnie & Clyde, Al Capone, Machinegun Kelly and Dick Chicanery.
* The guns carried by peace officers are Glocks, .40 caliber Glocks. Law enforcement in California standardized their side-arms several years ago (the CHP excepted) in order to make their ammunition interchangeable. Apparently, they foresee a day coming when military tactical readiness will be necessary to engage the public. But Glock makes many models of handguns, and the various models come in a variety of bore sizes. A Standard or Compact or Subcompact, for instance, can be had in either 9mm or .40 caliber (not to mention .45 Auto and .45 G.A.P., .380 ACP and .357 Magnum) and even an expert, facing the business end, would need a pair of calipers to tell the difference, since .40 caliber is the same as 10mm, and therefore only one millimeter bigger than a 9mm. If that’s not confusing enough, you can also get your Glock in 10mm. Also, a gunsmith can convert your Glock, whatever the model, in his garage or basement, to a 9mm Lugar, sometimes called the 9mm Parabellum, or the 9 x 19mm NATO round (but there’s six models available from the manufacturer in this NATO round). The .40 caliber cartridge was developed by Smith & Wesson, so it’s officially called a .40 S&W no matter who manufactures the bullets or the gun. If you look closely at either you can see .40 S&W stamped on the base of the bullet or the chamber of the gun.
One thing my editors deleted was the suave style of Inspector Guzman and the way the delightful emigre Gershenovitch were turned out. The style and deportment of these characters were such a relief from the obese tattooed monkeys that generally occupy the courts. Detachment and style, to quote Reynard the Fox. No wonder there’s a great exodus of refugees throughout Europe.