P. v. Hunter CA1/5

Filed 7/29/26 P. v. Hunter CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
A172345
Plaintiff and Respondent,
v. (San Francisco City & County
Super. Ct. No. CRI-23005706)
DERRICK HUNTER,
Defendant and Appellant.

Derrick Hunter (appellant) appeals following his convictions for
multiple firearms charges and additional offenses. We affirm.
BACKGROUND
The following evidence was presented at trial.1 In April 2023,
appellant resisted police officers when they attempted to detain him on an
unrelated allegation. During the incident, appellant removed a firearm from
his waistband and threw it over his head. Officers recovered a
semiautomatic handgun, a large-capacity magazine, and loose ammunition.
Law enforcement records indicated the firearm was registered to someone
other than appellant and had been either lost or misplaced by the owner.

1 We recite only the evidence relevant to the issues on appeal.

1
The jury found appellant guilty of possession of a firearm as a
prohibited person under the age of 30 (Pen. Code, § 29820, subd. (b); count
1);2 carrying a loaded firearm in public (§ 25850, subd. (a); count 2);
possession of a large-capacity magazine (§ 32310; count 3); possession of
ammunition as a prohibited person (§ 30305, subd. (a)(1); count 4); carrying a
concealed firearm (§ 25400, subd. (a)(2); count 5); and two counts of resisting
a peace officer (§ 148, subd. (a)(1); counts 6 & 7). The jury also found true
allegations, as to counts 2 and 5, that appellant was not in lawful possession
of the firearm (§§ 25400, subd. (c)(4), 25850, subd. (c)(4)).
The trial court imposed the two-year midterm on count 1, suspended
execution of sentence, and placed appellant on probation for two years with
various terms and conditions. The sentences imposed on the remaining
counts were either stayed or ordered to run concurrent with count 1.
DISCUSSION
I. Qualifying Prior Juvenile Adjudication (Counts 1, 4)
Appellant argues his convictions under section 29820 (count 1) and
section 30305 (count 4) should be reversed because no substantial evidence
supports the finding that he suffered a qualifying prior juvenile adjudication
as required by those statutes, and the jury instructions on the issue were
erroneous. We reject the challenge.
A. Legal Background
As relevant here, section 29820 prohibits the possession of firearms by
a person under the age of 30 who was adjudged a ward of a juvenile court
because of the commission of “an offense listed in subdivision (b) of Section
707 of the Welfare and Institutions Code.” (§ 29820, subds. (a)(1)(A), (a)(2),

2 All undesignated statutory references are to the Penal Code.

2
(b).) Section 30305 prohibits the possession of ammunition by a person who
is prohibited from possessing a firearm under section 29820. (§ 30305,
subd. (a)(1).)
Welfare and Institutions Code section 707, subdivision (b) offenses
include “[a]ssault by any means of force likely to produce great bodily injury.”
(Welf. & Inst. Code, § 707, subd. (b)(14).) As discussed further below, the
evidence at trial was that appellant’s 2011 juvenile wardship was for a
violation of section “245(a)(1)” which, at that time, penalized “an assault upon
the person of another with a deadly weapon or instrument other than a
firearm or by any means of force likely to produce great bodily injury . . . .”
(Stats. 2004, ch. 494, § 1.)
B. Additional Factual Background
Before trial, appellant filed a motion in limine regarding his juvenile
wardship, arguing “[t]he nature of the prior juvenile convictions are unduly
prejudicial and not probative of any relevant fact at issue” and requesting
“the court sanitize the prior convictions . . . to exclude the nature of the prior
convictions, while still allowing the jury to hear of the fact that [appellant]
was previously convicted of a felony as a juvenile.” At a hearing on the
motion, defense counsel argued, “the charge itself, the 245(a)(1), I do think is
prejudicial in a gun case. It’s a crime of violence.” The court granted the
motion in part, ruling that it would “allow the assault adjudication from the
juvenile court to come in” but would “not allow the People . . . to present any
information regarding . . . what kind of assault it was -- whether it was an
assault with force likely to produce great bodily injury or whether it was an
assault with a deadly weapon.”
A discussion about how the People would present evidence of the
juvenile adjudication took place at a subsequent hearing. The prosecutor

3
indicated his intent to submit appellant’s “CI&I” to “demonstrate[] the fact of
that juvenile adjudication.” (See Cal. Code Regs., tit. 15, § 3000 [“Criminal
Identification and Investigation (CI&I) Report means the report defined by
Penal Code section 11105, commonly referred to as ‘Rap Sheet’ ”].) Defense
counsel stated that appellant’s rap sheet indicated “245(a)(1), wardship
felony, PC force assault. It says ADW, assault with a deadly weapon not
firearm. GBI [great bodily injury] likely.” (Italics added.) After further
discussion, the court ruled, “Generally, a certified CI&I is admissible under
[Evidence Code section] 1280. The CI&I . . . will be redacted just to show an
assault 245 charge. I will take out the assault with a deadly weapon not a
firearm and great bodily injury. So it will just reflect assault.” (Italics
added.)
At trial, the People presented a redacted rap sheet indicating that, in
2011, appellant had been adjudged a ward of the juvenile court because of his
commission of a violation of section “245(A)(1).” The People also submitted a
juvenile court minute order documenting appellant’s admission to “245(a)(1).”
During discussions over proposed jury instructions, the prosecutor
noted that the relevant statutes “reference[] assault with force likely to cause
GBI [great bodily injury] as the qualifying charge that would trigger the
restriction. And here, that’s the charge that [appellant] pled to.” (Italics
added.) Later in the discussion, defense counsel noted, “I do recall the Court
ruling that the description of the (a)(1) is to be assault, not assault with force
likely to cause great bodily injury,” and stated that therefore, on the
instructions, “My understanding is it should be described as an assault.”
(Italics added.) The jury was instructed that the elements for a violation of
section 29820, subdivision (b) included, “[t]he defendant had a juvenile court

4
finding for assault, 245(a)(1).” The same instruction was provided for section
30305, subdivision (a).
C. Analysis
The parties dispute whether a juvenile wardship for an unspecified
violation of former section 245, subdivision (a)(1)—“an assault upon the
person of another with a deadly weapon or instrument other than a firearm
or by any means of force likely to produce great bodily injury”—constitutes
evidence of a wardship for “[a]ssault by any means of force likely to produce
great bodily injury” (Welf. & Inst. Code, § 707, subd. (b)(14)). Appellant
argues it does not because an assault with a deadly weapon other than a
firearm is not equivalent to an assault by means of force likely to produce
great bodily injury. We need not decide this issue.
The People argue, in the alternative, that appellant should be judicially
estopped from raising this claim on appeal. “ ‘ “ ‘Judicial estoppel precludes a
party from gaining an advantage by taking one position, and then seeking a
second advantage by taking an incompatible position. [Citations.] The
doctrine’s dual goals are to maintain the integrity of the judicial system and
to protect parties from opponents’ unfair strategies. [Citation.] Application
of the doctrine is discretionary.’ ” [Citation.] The doctrine applies when “(1)
the same party has taken two positions; (2) the positions were taken in
judicial or quasi-judicial administrative proceedings; (3) the party was
successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent;
and (5) the first position was not taken as a result of ignorance, fraud, or
mistake.” ’ ” (People v. Castillo (2010) 49 Cal.4th 145, 155, italics omitted.)
Each of these elements is established here: (1) Appellant argued below
that the nature of the assault offense was not relevant to any issue, but

5
argues on appeal that it is in fact critical to whether his juvenile adjudication
was a qualifying one for counts 1 and 4; (2) the positions were both taken in
judicial proceedings; (3) appellant’s successful argument in the trial court
resulted in a court order redacting any additional information about the
juvenile offense other than that it was for “245(a)(1)”; (4) the two positions
are wholly inconsistent; and (5) there is no indication that appellant’s trial
court position was taken as a result of ignorance, fraud, or mistake. We note
that, while appellant’s unredacted rap sheet is not part of the record on
appeal, multiple comments made by the attorneys and trial court as set forth
above indicate that appellant’s juvenile adjudication was, at least in part, for
an assault by means of force likely to produce great bodily injury.
Appellant’s reply brief does not dispute that the elements of judicial
estoppel are satisfied or that applying the doctrine would be an appropriate
exercise of our discretion (indeed, appellant does not even mention the
People’s judicial estoppel argument). We agree with the People that judicial
estoppel is appropriate to preclude appellant’s argument that his juvenile
adjudication for “245(a)(1)” is insufficient to establish, as a matter of fact or
law, that he suffered a qualifying juvenile adjudication for counts 1 and 4.
II. Felony Sentences (Counts 2, 5)
The jury found appellant guilty of misdemeanor carrying a loaded
firearm in public (§ 25850, subd. (a); count 2) and misdemeanor carrying a
concealed firearm (§ 25400, subd. (a)(2); count 5). The trial court sentenced
appellant on each of these counts to felony two-year prison terms (stayed
under section 654). Appellant argues these felony sentences are
unauthorized because the convictions were for misdemeanor offenses.
As the People argue, these statutes provide for punishment as a felony
under certain circumstances, including when the person “is not in lawful

6
possession of the firearm.” (§§ 25850, subd. (c)(4), 25400, subd. (c)(4).) The
jury found true allegations that appellant was not in lawful possession of the
firearm with respect to counts 2 and 5. Accordingly, the trial court properly
imposed felony sentences on these counts.
III. Large-Capacity Magazine Ban (Count 3)
Appellant argues his conviction for violating the statute prohibiting
possession of a large-capacity magazine (§ 32310; count 3) should be reversed
because the statute is unconstitutional under the Second Amendment to the
United States Constitution. We reject the claim.
As an initial matter, appellant does not dispute that he failed to raise
the claim below. In response to the People’s forfeiture argument, appellant
asserts he is raising only a facial challenge presenting a pure question of law.
(See People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471, fn. 5 [“we may
consider for the first time on appeal a pure question of law which is presented
by undisputed facts”].) With this understanding, we consider appellant’s
claim.
“A magazine is a device that automatically feeds ammunition into a
firearm whenever the shooter fires a bullet. Although some magazines are
permanently affixed to a firearm, most magazines are detachable.” (Duncan
v. Bonta (9th Cir. 2025) 133 F.4th 852, 861 (Duncan).) For purposes of
section 32310, “ ‘large-capacity magazine’ means any ammunition feeding
device with the capacity to accept more than 10 rounds,” with certain
exceptions. (§ 16740.) Under such a definition, a large-capacity magazine
“enables a shooter to fire more than ten bullets rapidly and without
reloading.” (Duncan, at p. 862.) Second Amendment challenges to
California’s ban on possessing large-capacity magazines have recently been
rejected by both the Ninth Circuit and another division of this court.

7
(Duncan, at pp. 864–884; People v. McCowan (2026) 117 Cal.App.5th 1071,
1096–1099 (McCowan).)
In analyzing Second Amendment challenges, courts first “determine
whether ‘the Second Amendment’s plain text covers an individual’s
conduct.’ ” (McCowan, supra, 117 Cal.App.5th at p. 1082.) If so, “ ‘[t]he
government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.’ ”
(Ibid.) Duncan and McCowan both found the Second Amendment’s plain text
did not cover the possession of large-capacity magazines. Duncan reasoned,
“the Founders protected the right to keep and bear ‘Arms,’ not a right to keep
and bear ‘Arms and Accoutrements,’ a common expression at the time of the
Founding. Large-capacity magazines are optional accessories to firearms,
and firearms operate as intended without a large-capacity magazine. A
large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in
itself. Possession of a large-capacity magazine therefore falls outside the text
of the Second Amendment.” (Duncan, supra, 133 F.4th at p. 860.) McCowan
reasoned that, while many cases considering challenges to large-capacity
magazine bans based their conclusions on whether such magazines “were
necessary to operate the firearm,” the challenger in McCowan “has not
presented any evidence regarding whether magazines constitute a functional
component of firearms or whether they are necessary to operate those
firearms as intended. He instead relies on the conclusions in the Duncan
dissent. We decline to rely on the factual conclusions in that case absent
evidence in the record before us to support those conclusions.” (McCowan, at
p. 1098.)
Both cases also held that, even if large-capacity magazines were
covered by the Second Amendment, California’s ban was consistent with

8
historical regulation. Duncan relied on “the Nation’s traditions of protecting
innocent persons by prohibiting especially dangerous uses of weapons and by
regulating components necessary to the firing of a firearm” and held that,
“[l]ike those historical laws, California’s law restricts an especially dangerous
feature of semi-automatic firearms—the ability to use a large-capacity
magazine—while allowing all other uses of those firearms. . . . By prohibiting
only an especially dangerous use of a modern weapon, the law ‘comport[s]
with the principles underlying the Second Amendment.’ ” (Duncan, supra,
133 F.4th at p. 860.) McCowen cited multiple cases which “concluded that
large-capacity magazines are not ‘typically possessed by law-abiding citizens
for lawful purposes,’ ” and found the challenger in McCowan “has not
demonstrated otherwise. Again, he relies on facts outside the record by citing
the Duncan dissent and various news articles and surveys regarding the
popularity of large-capacity magazines and their common uses. Accordingly,
his facial challenge to section 32310 fails.” (McCowan, supra, 117
Cal.App.5th at pp. 1098–1099.)
Like the challenger in McCowan, appellant points to no record evidence
indicating a contrary result as to either step of the above analysis, and
instead relies on a dissent in Duncan and secondary sources such as law
review articles and news stories. These are not cognizable evidence for
purposes of this unpreserved facial challenge. (See McCowan, supra, 117
Cal.App.5th at pp. 1098–1099; see also People v. Crenshaw (2025) 116
Cal.App.5th 1169, 1178–1179 [in Second Amendment challenge to assault
weapons, the appellant’s “reliance on general assertions about AR-type rifles
from law review articles and federal authorities emphasizes the lack of
relevant facts in the record. [The challenger’s] claim requires the
development of a more robust factual record. . . . This is not an inquiry that

9
turns on the review of abstract and generalized legal concepts; thus, we are
not well suited to address this constitutional challenge on appeal for the first
time.”].) Appellant’s challenge fails.
DISPOSITION
The judgment is affirmed.

SIMONS, J.

We concur.
JACKSON, P. J.
CHOU, J.

(A172345)

10