P. v. Burts

 

 

 

 

 

 

 

 

 

 

Filed 12/6/13 
P. v. Burts CA5

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,                           v.   EMMANUEL BEN BURTS,   Defendant and Appellant.

F065261   (Super. Ct. No. F12901379)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County.  Denise L. Whitehead, Judge.

            Steven S.
Lubliner, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Defendant Emmanuel Ben Burts was convicted by jury of
being a felon in possession of a firearm
(Pen. Code, § 29800, subd. (a)(1); count 1)href="#_ftn2" name="_ftnref2" title="">^[1] and being a felon in possession of ammunition
(§ 30305, subd. (a); count 2).  He
admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a
prior prison term (§ 667.5, subd. (b)). 
The trial court sentenced him to seven years in prison.

            On appeal,
defendant contends the two statutes that prohibit a felon from possessing a
firearm and ammunition violate his constitutional right to bear arms undername=SearchTerm>
the Second Amendment of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States
Constitution.  We conclude that the statutes
in question do not contravene defendant’s Second name="SR;2321">Amendment rights as interpreted by the United States
Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller)name=FN2>.

name="SDU_2">name=B32025564956>The Second name="SR;2426">Amendment of the United States Constitution
states:  “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.”  (U.S.
Const., 2d Amend.)  â€œThe name="SR;2466">Second Amendment protects
an individual’s right to possess and carry weapons in case of
confrontation.  (Heller, supra,
554 U.S. at pp. 592, 595.)  The name="SR;2495">Second Amendment is fully
applicable to the states by the due process clause of the Fourteenth
Amendment.  (McDonald v. City of
Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020].)”  (People
v. Ellison (2011) 196 Cal.App.4th 1342, 1347.)  Heller
explained, however, that “[l]ike most rights, the right secured by the Second
Amendment is not unlimited.  From
Blackstone through the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.  [Citations.]  For example, the majority of the 19th-century
courts to consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state analogues.  [Citations.] 
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 possessionname="citeas((Cite_as:_554_U.S._570,_*626,_128"> 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 imposingname="sp_780_627"> name="citeas((Cite_as:_554_U.S._570,_*627,_128">conditions and
qualifications on the commercial sale of armsname=F027262016385211>.”  (>Heller, supra, at pp. 626-627,
italics added, fn. omitted.)  The court
noted that this list includes examples of “presumptively
lawful regulatory measures.”  (>Id. at p. 627, fn. 26.)

Defendant
attempts to minimize these statements in Heller
as dicta, but we decline to
disregard this clear language upholding the prohibition of the possession of
firearms by felons.href="#_ftn3" name="_ftnref3" title="">^[2]  Recent case law also supports this view.  (See, e.g., People v. Flores (2008)
169 Cal.App.4th 568 [statute prohibiting possession of firearm by persons
convicted of certain misdemeanors]; People
v. Delacy (2011) 192 Cal.App.4th 1481 [same].)  The reasoning and explanation in >Heller and these more recent cases
satisfy us that the statutes prohibiting a felon from possessing a firearm and
ammunition are presumptively lawful regulatory measures that do not infringe on
defendant’s Second Amendment rights.

DISPOSITION

The judgment
is affirmed.