P. v. Burke

 

 

 

 

 

 

 

 

 

 

 

Filed 5/30/13  P. v. Burke CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   STEVEN JOHN BURKE,         Defendant and Appellant.	G047061          (Consol. with G047062)            (Super. Ct. Nos. 11NF3234 &           11NF2951)            O P I N I O N

 

                        Appeal from judgments of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Craig E. Robison, Judge.  Affirmed.

                        Khouri Law Firm and
Michael J. Khouri for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Charles C. Ragland,
Deputy Attorneys General, for Plaintiff and Respondent.

*               
*                *

 

                        Defendant
Steven John Burke pleaded guilty to one count of href="http://www.mcmillanlaw.com/">unlawful possession of a firearm (Pen.
Code, § 12021, subd. (c)(1)) (case No. 11NF2951) and two counts of unlawful
possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (case No.
11NF3234).href="#_ftn1" name="_ftnref1" title="">[1]  On appeal he challenges the constitutionality
of section 12021, subdivision (c)(1) (section 12021(c)(1)), which
prohibits certain misdemeanants from possessing firearms, contending the
statute violates his Second Amendment right to bear arms and Fourteenth
Amendment right to equal protection.href="#_ftn2" name="_ftnref2" title="">[2]  We consolidated the cases on appeal and
affirm the judgments.

 

FACTS

 

                        Defendant offered the
following facts as the basis for his guilty pleas underlying the judgments in
these consolidated appeals.  On February 10, 2011, he unlawfully
possessed a firearm.  On February 10 and
October 5 of 2011, he unlawfully possessed ammunition.  On those dates, he was prohibited from
possessing firearms or ammunition due to his August 28, 2003 conviction for misdemeanor assault under
section 240.

 

DISCUSSION

 

                        Defendant challenges the
constitutionality of section 12021(c)(1) under the Second and Fourteenth
Amendments of the United States Constitution. 
Section 12021(c)(1) prohibits a person convicted of a qualifying
misdemeanor (including assault under § 240) from owning or possessing a firearm
within 10 years of the misdemeanor conviction. 
Assault under section 240 is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.”

                        We first address
defendant’s Second Amendment challenge to the statute.  Relying on District of Columbia v. Heller (2010) 554 U.S. 570 (>Heller) and U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 (Chester), defendant urges us to apply Chester’s standard of intermediate scrutiny to determine whether
section 12021(c)(1) violates his Second Amendment right to bear arms.

                        The Second Amendment
provides, “A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.”  In Heller, the Supreme Court held that the Second Amendment guarantees
“the individual right to possess and carry weapons in case of
confrontation.”  (Heller, supra, 554 U.S.
at p. 592.)  Heller cautioned, however, that “the right secured by the Second
Amendment is not unlimited.”  (>Id. at p. 626.)  Indeed, Heller
identified (and left intact) certain historically permissible restrictions on
the right to bear arms:  “Although we do
not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” 
(Id. at pp. 626-627.)  >Heller further recognized existing prohibitions
on carrying concealed weapons (id. at
p. 626) or “‘dangerous and unusual weapons’” (id. at p. 627).  >Heller clarified that its list did “not
purport to be exhaustive” and that it identified “these presumptively lawful
regulatory measures only as examples.”  (>Id. at p. 627, fn. 26.)

                        Heller then turned to the District of Columbia law at issue there,
which “totally ban[ned] handgun possession in the home[ and] also require[d]
that any lawful firearm in the home be disassembled or bound by a trigger lock
at all times, rendering it inoperable.” 
(Heller, supra, 554 U.S. at p. 628.) 
The Supreme Court held the law was unconstitutional.  (Id.
at pp. 628-629.)  The high court
explained that the Second Amendment protects a person’s right to possess a
handgun in the home for self-defense and protection of family and
property.  (Heller, at p. 628.)  The
Supreme Court declared that the District of Columbia’s ban of handguns from the
home failed constitutional muster under any standard, thus expressly leaving open
the question of the applicable standard of scrutiny.  (Id.
at pp. 628-629, 634.)  >Heller did suggest, however, that
rational basis scrutiny would be insufficient: 
“If all that was required to overcome the right to keep and bear arms
was a rational basis, the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have no effect.”  (Id.
at p. 628, fn. 27.)

                        In Heller’s aftermath, the Court of Appeal in People v. Flores (2008) 169 Cal.App.4th 568 (Flores) upheld section 12021(c)(1) against a Second Amendment
challenge under facts similar to those before us.  (Flores,
at pp. 573, 577.)  The defendant’s
section 12021(c)(1) conviction was based on his prior misdemeanor assault
conviction under “section 245, subdivision (a)(1), which prohibits ‘an assault
upon the person of another . . . by any means of force
likely to produce great bodily injury.’” 
(Flores, at p. 574).  Flores
observed that section 12021, subdivision (a)’s prohibition of >felons from possessing firearms falls
into one of Heller’s recognized
permissible restrictions.  (>Flores, at p. 574.)  As to misdemeanants, Flores reasoned:  “If, as >Heller emphasizes, the Second Amendment
permits the government to proscribe the possession of a firearm by any felon
(including nonviolent offenders), we can see no principled argument that the
government cannot also add certain misdemeanants, particularly those who have
committed an assault by ‘means of force likely to produce great bodily injury.’  [Citation.] 
The public interest in a prohibition on firearms possession is at its
apex in circumstances, as here, where a statute disarms persons who have proven
unable to control violent criminal impulses.” 
(Id. at p. 575.)

                        Subsequently, >People v. Delacy (2011)192 Cal.App.4th
1481 (Delacy) involved another Second
Amendment challenge to section 12021(c)(1)’s prohibition on misdemeanants’
possession of firearms.  (>Delacy, at p. 1485.)  The predicate misdemeanor in >Delacy was battery under section 242 (>Delacy, at p. 1485), which defines
battery as “‘any willful and unlawful use of force or violence upon the person
of another’” (Delacy, at
p. 1492).  The defendant urged the
appellate court to apply strict scrutiny to strike down section
12021(c)(1).  (Delacy, at p. 1488.)href="#_ftn3" name="_ftnref3" title="">[3]  The appellate court found it unnecessary to
apply any standard of scrutiny balancing the statute’s objectives against its
means because, under Heller and >Flores, section 12021(c)(1) is a
presumptively lawful regulation (insofar as it prohibits “firearm possession by
misdemeanants who have shown a propensity to commit violence against others”)
and is therefore immune from means-end scrutiny.  (Delacy,
at p. 1492; see also U.S. v.
Marzzarella (3d Cir. 2010) 614 F.3d 85, 91 [Heller’s recognized historic restrictions are presumptively lawful >not because “they pass muster under any
standard of scrutiny,” but, rather, because they “regulate conduct outside the
scope of the Second Amendment” and “are exceptions to the right to bear
arms”].)  Delacy noted that appellate courts were “generally unanimous in
rejecting the application of means-end scrutiny to statutes disqualifying
felons and certain misdemeanants from weapons possession until an en banc
decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614 F.3d 638 (Skoien) and, more recently, . . . >Chester[, supra,] 628 F.3d 673 . . . , which follows >Skoien.” 
(Id. at p. 1490.)  Delacy
disagreed with Skoien’s application
of intermediate scrutiny to determine the constitutionality of >Heller’s presumptively valid
restrictions.  In Delacy’s view, “the Skoien
approach gives too little weight to the ‘presumptively lawful’ language of >Heller.” 
(Delacy, at p. 1490>.)

                        Here, defendant urges us
to apply the intermediate scrutiny standard advocated by Chester, where the Fourth Circuit adopted “a two-part approach to
Second Amendment claims.”  (>Chester, supra, 628 F.3d at p. 680.) 
The Chester approach asks
whether the challenged law restricts conduct historically protected by the
Second Amendment and, if so, whether (under the intermediate scrutiny standard)
there is a reasonable fit between the law and a substantial government
objective.  (Chester, at pp. 680, 683.) 
Chester concluded that (1)
“the possession of a firearm in the home by a domestic violence misdemeanant” (>id. at p. 680) was not necessarily
excluded from Second Amendment protection, (2) therefore the defendant was
“entitled to some measure of Second Amendment protection to keep and possess
firearms in his home for self-defense” (id.
at pp. 681-682), and (3) the government bore the burden of justifying the
challenged law under the appropriate standard of scrutiny (id. at p. 682).  >Chester reached this conclusion,
however, only because the government there did not contend that the challenged law involved conduct unprotected by
the Second Amendment and because of the lack of historical evidence on this
issue in the record.  (>Chester, at p. 682.)

                        We agree with >Flores and Delacy that gun possession by an assault or battery misdemeanant is
not conduct historically protected by the Second Amendment.  Accordingly, we hold that section
12021(c)(1)’s prohibition on gun possession by a person convicted of
misdemeanor assault under section 240 (which requires “an unlawful attempt,
coupled with a present ability, to commit a violent injury”) is a presumptively
lawful restriction and immune from constitutional means-ends scrutiny.  Furthermore, this case is distinguishable
from Chester because the Attorney
General argues here that defendant “committed a misdemeanor crime of violence”
and under Flores and >Delacy does not qualify for Second
Amendment protection.

                         Defendant also challenges the
constitutionality of section 12021(c)(1) on equal protection grounds under the
Fourteenth Amendment of the United States Constitution.  Focusing on voting rights, he argues that,
although the Supreme Court has “upheld states’ right to disenfranchise
ex-felons,” as to misdemeanants it has “held that the Fourteenth Amendment
prohibited states from disenfranchising persons convicted of misdemeanors, even
if the crimes involved moral turpitude.” 
For this proposition he relies on Hunter
v. Underwood (1985) 471 U.S. 222, 223. 
Contrary to defendant’s representation, Hunter held that an Alabama law violated equal protection because
its “original enactment was motivated by a desire to discriminate against
blacks on account of race” and the law’s racially discriminatory effect was
ongoing.  (Id. at p. 233.) 
Furthermore, as stated by the Attorney General here, “[a]llowing a
person who has a demonstrated inability to control his violent criminal
impulses to possess a firearm raises concerns for public safety that are not
present in allowing the same person to vote.”

 

DISPOSITION

 

                        The
judgment is affirmed.

 

 

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
ACTING P. J.

 

 

 

THOMPSON, J.