Parker v. State, F062490, F062709

• Citation: 164 Cal.Rptr.3d 345
• Decision Date: 06 November 2013
• Docket Number: F062490, F062709
• Court: California Court of Appeals
• Parties: Clay PARKER, as Sheriff, etc., et al., Plaintiffs and Respondents, v. STATE of California, et al., Defendants and Appellants.

164 Cal.Rptr.3d 345

Clay PARKER, as Sheriff, etc., et al., Plaintiffs and Respondents,
v.
STATE of California, et al., Defendants and Appellants.

F062490, F062709

Court of Appeal, Fifth District, California.

Filed November 6, 2013

Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Peter A. Krause and Ross C. Moody, Deputy Attorneys General, for Defendants and Appellants.

Michel & Associates, C.D. Michel, Clinton B. Monfort, and Anna M. Barvir, Long Beach, for Plaintiffs and Respondents.

Bruce Colodny ; and Stephen P. Halbrook for FFLGuard LLC and Gun Owners of California, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.

Baker, Manock & Jensen, Douglas Blaine Jensen ; and Richard E. Gardiner, Roseville, for Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and Respondents.

OPINION

Gomes, J.

This appeal presents a facial challenge under the void-for-vagueness doctrine to a statutory scheme within the Penal Code¹ regulating the sale, display, and transfer of "handgun ammunition." The statutes at issue, former sections 12060, 12061 and 12318, defined "handgun ammunition" as ammunition "principally for use" in handguns as opposed to rifles and other firearms. In the proceedings below, respondents challenged the constitutionality of these statutes on grounds that they failed to provide adequate notice of the conduct proscribed and lacked sufficiently definite guidelines to prevent arbitrary or discriminatory enforcement by police.

The trial court agreed with respondents, declaring the challenged statutes constitutionally invalid and issuing a permanent injunction against their enforcement. Appellants contend the statutes are not unconstitutional because it is possible to conceive of circumstances in which the statutory language would not be vague. These issues are addressed in the first part of our opinion. The second part of the opinion pertains to the trial court's partial denial of a motion to tax costs filed

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by appellants after the permanent injunction was issued.² We affirm the judgment in full.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Statutory Scheme

Former sections 12060, 12061, and 12318 were enacted as part of Assembly Bill No. 962 (2009–2010 Reg. Sess.), known as the Anti–Gang Neighborhood Protection Act of 2009, which implemented a statutory scheme for the transfer and handling of "handgun ammunition." (Stats. 2009, ch. 628, §§ 1–2, 7.) In 2012, Senate Bill No. 1080 (2011–2012 Reg. Sess.) renumbered and reconfigured provisions of the Penal Code relating to deadly weapons, including the challenged statutes. (Stats. 2010, ch. 711, §§ 4, 6.) In their briefing, the parties refer to the challenged statutes by their original section numbers. We will discuss the current versions of all relevant statutes and refer to repealed provisions as former sections of the Penal Code.

A handgun is any pistol, revolver or firearm capable of being concealed upon the person. (§ 16640, subd. (a).) The terms "pistol," "revolver," and "firearm capable of being concealed upon the person" are defined in section 16530, which incorporates the language of former section 12001, subdivision (a)(1). (Stats. 2007, ch. 163, § 1, p. 1118.) These terms "apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length." (§ 16530, subd. (a).)

Section 16650 combines the language of former sections 12060, subdivision (b), and 12323, subdivision (a), to provide the definition of "handgun ammunition." (See Stats. 2009, ch. 628, § 2; Stats. 1995, ch. 263, § 3, p. 926.) As used in the statutory scheme, " ‘handgun ammunition’ means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, notwithstanding that the ammunition may also be used in some rifles. " (§ 16650, subd. (a), italics added.)

The definition of a "handgun ammunition vendor" is set forth in section 16662, which corresponds to former section 12060, subdivision (c). (Stats. 2009, ch. 628, § 2.) A " ‘handgun ammunition vendor’ means any person, firm, corporation, dealer, or any other business enterprise that is engaged in the retail sale of any handgun ammunition, or that holds itself out as engaged in the business of selling any handgun ammunition." (§ 16662.)

These definitional statutes, particularly section 16650, are essential to the proscriptive language of section 30312 (former § 12318) and sections 30345 through 30365 (former § 12061), all of which impose restrictions on the sale, delivery, and transfer of handgun ammunition. Section 30312 states that "the delivery or transfer of ownership of handgun ammunition may only occur in a face-to-face transaction with the deliverer or transferor being provided bona fide evidence of identity from the purchaser or other transferee." (§ 30312, subd. (a).) Limited exceptions are provided for law enforcement personnel and other qualified individuals. (Id., subd. (b).) A violation of section 30312 is a misdemeanor offense. (Id.,

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subd. (c).)

Sections 30345 through 30365 regulate the activities of handgun ammunition vendors. For example, a vendor must not allow any employee who cannot lawfully possess a firearm to "handle, sell, or deliver handgun ammunition in the course and scope of employment." (§ 30347.) Handgun ammunition must also remain inaccessible to customers unless they are being assisted by the vendor or a qualified employee. (§ 30350.)

When handgun ammunition is sold or otherwise transferred, the vendor must record multiple categories of information related to the transaction. This process includes obtaining from the buyer or transferee their date of birth, address, telephone number, driver's license number, signature, and right thumbprint. (§ 30352, subd. (a).) Vendors must maintain handgun ammunition sales transaction records and make them available for inspection in accordance with the provisions of sections 30355, 30357, 30360 and 30362. A violation of section 30352, 30355, 30360, or 30362 is a misdemeanor. (§ 30365, subd. (a).)

Ammunition—Calibers and Cartridges

The parties' briefing provides a technical overview of ammunition and its usage in different types of firearms. There appears to be a general consensus between both sides as to the following information.

Modern rifles and handguns fire ammunition that consists of three components: a metal casing that holds a bullet, a propellant or powder, and a primer to ignite the powder. The metal casing and its component parts are known as a cartridge. Three terms, in order of specificity, are commonly used to describe the loaded cartridge: ammunition, caliber, and the cartridge's given name, such as ".357 Magnum" or ".257 Roberts."

Relying on the Glossary of the Association of Firearm and Toolmark Examiners, the parties agree that "ammunition" means "one or more loaded cartridges consisting of a primed case, propellant, and with one or more projectiles." The word "caliber" has multiple definitions. When applied to a firearm, it refers to the diameter of the bore of a gun, usually measured in hundredths or thousandths of an inch and typically written as a decimal fraction. (Merriam–Webster's Collegiate Dict. (11th ed. 2011) p. 174.) When applied to ammunition, it can be defined as "the diameter of a bullet or other projectile" (Ibid ) or "[a] numerical term, without the decimal point, included in a cartridge name to indicate the nominal bullet diameter." (Glossary of the Assn. of Firearm and Toolmark Examiners (2d ed. 1985) p. 32.) There are many different cartridges within a given caliber of ammunition.

Lawsuit

In June 2010, the Sheriff for the County of Tehama, Herb Bauer Sporting Goods, Inc., the California Rifle and Pistol Association Foundation, Able's Sporting, Inc., RTG Sporting Collectibles, LLC, and Steven Stonecipher (collectively respondents) filed a complaint for declaratory and injunctive relief which alleged, in pertinent part, that former sections 12060, 12061 and 12318 were void for vagueness under the due process clause of the Fourteenth Amendment.³ The complaint was answered by the State of California, the Attorney General for the State of California,

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and the California Department of Justice (collectively appellants).

Respondents claimed that because virtually all calibers of ammunition can be used safely in both rifles and handguns, the challenged statutes failed to provide any standard whereby a person of ordinary intelligence could understand and determine whether a given caliber of ammunition is "principally for use" in handguns. As such, law enforcement officials would have discretion to subjectively interpret and apply the law, i.e., the ability to decide for themselves which calibers of ammunition qualify as "handgun ammunition." Appellants admitted in their answer that some calibers can be used in both rifles and pistols, but generally denied there was any confusion surrounding which calibers are "principally for use" in handguns or that the statutes conferred unbridled discretion upon law enforcement officers.

Respondents propounded a special interrogatory to appellants asking for a list of the types of ammunition they considered to be "handgun ammunition" under the statutory scheme. Appellants objected to the word "types" as being vague and ambiguous, but identified 11 different calibers. As discovery progressed, respondents' expert opined that ammunition is more accurately distinguished by cartridge type, rather than by caliber, because within each caliber there is "a wide range of cartridge lengths, bullet weights, velocity, power, applications and true bullet diameters."...