Developing a Record

At an event this past weekend I had a nice chat with a law professor about the importance of developing a record in the trial court. Developing a record, if you don’t know, means creating a clear, complete, and usable record of proceedings so that rulings can be properly reviewed later on by an appellate court. This is because an appellate court, absent exceptional circumstances, considers only evidence in the record. A recent opinion published by the California’s First District Court of Appeal illustrates why this is so important.

Let’s begin here: In California, Penal Code section 30605, provides, in pertinent part: "Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170." (§ 30605, subd. (a).) Section 30510 defines "'assault weapon'" with a list of specified semiautomatic firearms identified by make, model, and/or series. Section 30515, subdivision (a) provides several additional definitions of "'assault weapon.'" Included in these definitions is "'assault weapon'," which includes "semiautomatic, centerfire rifle that has an overall length of less than 30 inches." (§ 30515, subd. (a)(3).)

The recent opinion, People v. Crenshaw, involved a fellow challenging his conviction under section 30605 by claiming the law violated the Second Amendment as recently interpreted under Bruen. Particularly, he claimed that assault weapons are protected under the Second Amendment because they are in common use within the United States.

The Court of Appeal rejected his claim, devoting itself to distinguishing cases he cited and finding that statistical and empirical evidence from law review articles didn’t apply. The court explained that Crenshaw’s claim required the development of “a more robust factual record, particularly on the prevalence of the gun at issue in the case.”

So does this mean that had the record been properly developed in his case the CA may have reached an opposite conclusion on the 2nd Amendment question? I.e., would the court, with a proper record, have ruled that California’s section 30605 was unconstitutional? I think the answer has to be… maybe? I suppose it would depend on the quality of evidence Crenshaw could produce showing common usage…

Develop your records! Appellate lawyers will thank you.