Test of Calif. gun law raises questions

January 22, 1992|By New York Times News Service

SAN JOSE, Calif. -- Until New Year's Day, C. Nicholas Conchas' life was one of the small successes of the Hispanic community that makes up much of this city's East Side.

Coming with his wife from Mexico 20 years ago, he worked hard to build a small painting business and buy a home in a working-class neighborhood of tidy tract houses, even adding a story to it to accommodate his five children and the grandchildren to come.

But on the morning of Jan. 1, the Conchas family's tiny piece of the American dream was shattered by one bullet from a .22-caliber revolver accidentally fired by Mr. Conchas' 4-year-old grandson, Jesus Valencia, into his own heart, killing him almost instantly.

Now Nicholas Conchas has become the first person charged under a state law that took effect less than 10 hours before his grandson shot himself. The law makes adults who negligently store loaded weapons within the reach of children criminally liable if a child is injured or killed. If convicted, Mr. Conchas faces a possible sentence of three years in prison and a $10,000 fine.

Supporters of the law and similar laws in other states say that they could help prevent the accidental shootings that kill hundreds of children each year. But the Conchas case has raised questions about whether prosecuting such cases brings more harm than social good.

Even as they mourn Jesus' death, Mr. Conchas' family, friends and neighbors say he should not have been charged, that he has already been punished enough by the suffering his apparent carelessness brought all of them.

They worry that because he is not a citizen, he could face deportation if he becomes a convicted felon. And they wonder how the family will survive financially if the 47-year-old patriarch is sent to prison.

"It's an accident," said Eva Conchas, Jesus' mother and Mr. Conchas' daughter. "I still love my father. I don't want any more tragedy. What is the family going to do if they put him in jail?"

But those who support the law argue that accidental shooting deaths of children are by their nature always calamities, whether they occur within a family or involve a friend or neighbor. And they argue that whatever suffering such killings cause, the law must be enforced to protect children from the carelessness with which adults sometimes treat deadly weapons.

"I really feel for him," said Judy Soto of Orlando, Fla., who lobbied for a similar law in her state after her 10-year-old son was accidentally killed by a neighbor's child who was playing with his father's pistol. "But we can't say the law is not to be taken seriously because we have sympathy for the family. That would be sending a mixed message that it's OK if it's your son or nephew or grandson who got killed, but it's not OK if it's your neighbor's child."

Besides Florida and California, four states -- Iowa, Virginia, Connecticut and Maine -- have similar laws.

Jesus, the oldest of three children of Eva Conchas and her estranged boyfriend, Antonio Valencia, was left with his grandparents on New Year's Eve. His grandfather, celebrating at home with friends, rang in the New Year by firing shots into the air.

After three shots, the gun misfired and was laid aside. Daniel Villanueva Hernandez, the San Jose lawyer representing Mr. Conchas, said it was not clear how the gun got into the bedroom where Jesus lay sleeping.

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