People v. Delacy

• Decision Date: 25 February 2011
• Docket Number: No. A125803.,Certified for Partial Publication. ,A125803.
• Citation: 11 Cal. Daily Op. Serv. 2651,2011 Daily Journal D.A.R. 3,122 Cal.Rptr.3d 216,192 Cal.App.4th 1481
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rick Charles DELACY, Defendant and Appellant.

192 Cal.App.4th 1481 122 Cal.Rptr.3d 216 11 Cal. Daily Op. Serv. 2651 2011 Daily Journal D.A.R. 3065 The PEOPLE, Plaintiff and Respondent, v. Rick Charles DELACY, Defendant and Appellant. No. A125803. Certified for Partial Publication.^* Court of Appeal, First District, Division 1, California. Feb. 25, 2011.

**218 James M. Crawford, Orange, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Laurence K. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

MARGULIES, Acting P.J.

*1484 Defendant Rick Charles Delacy was convicted of four counts of unlawful possession of firearms and one count of unlawful possession of ammunition. (Pen.Code,¹ §§ 12021, subd. (c)(1), *1485 12316, subd. (b)(1).) He challenges the constitutionality of section 12021, subdivision (c)(1), which prohibits the possession of firearms by persons convicted of specified misdemeanors, contending**219 it violates the Second Amendment right to bear arms and equal protection. He also argues his conviction under section 12316, subdivision (b)(1) must be reversed because the trial court declined to instruct the jury on a mistake of fact defense and failed to answer adequately a jury question as to the mental state element required for conviction. Finally, defendant claims certain fees and fines should be stricken from the trial court's sentencing minute order because the trial court did not orally impose them at the sentencing hearing. We affirm.

I. BACKGROUND

Defendant's crimes were charged in two informations, arising from two separate incidents. In case No. CR142103 (the firearm case), defendant was charged with four felony counts of unlawful firearm possession. (§ 12021, subd. (c)(1).) The amended information alleged defendant's possession of firearms was unlawful because he had been convicted within the past 10 years of misdemeanor battery under section 242, one of the misdemeanors enumerated in section 12021, subdivision (c)(1).²

In case No. CR142660 (the ammunition case), defendant was charged with one felony count of unlawful possession of ammunition (§ 12316, subd. (b)(1)) ³ and one count of receiving stolen property (§ 496, subd. (a)). The unlawful possession charge contained allegations that defendant's possession of ammunition was unlawful because of his prior conviction and that defendant was on bail or on his own recognizance in case No. CR142103, at the time of the offense.

*1486 The firearms and ammunition were discovered during two probation searches of defendant's home in April and October 2008. During the first search, officers found four firearms, including a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. When confronted, defendant told the officers, "There ain't nothing wrong with me having guns." Defendant later testified he possessed the guns for hunting. The second search uncovered shotgun shells in a camouflage bag in defendant's bedroom closet and in two storage tubs in the garage. Defendant told deputies the shells were for hunting.

Prior to trial in the firearm case, defendant moved to dismiss the information on **220 the ground section 12021, subdivision (c)(1) violated the Second Amendment right to bear arms, as interpreted in the United States Supreme Court's decision in District of Columbia v. Heller (2008) 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 ( Heller ). The trial court denied the motion, relying on People v. Flores (2008) 169 Cal.App.4th 568, 86 Cal.Rptr.3d 804 ( Flores ), in which the court rejected a post- Heller challenge to section 12021, subdivision (c)(1).

The two cases were tried separately, beginning with a jury trial in the ammunition case in January 2009. The jury found defendant guilty of unlawful possession of ammunition and found true the special allegation defendant committed the offense while on bail or on his own recognizance in case No. CR142103. He was acquitted of the receiving stolen property charge. In March 2009, after the parties waived jury trial in the firearm case, the court found defendant guilty on the four charges of unlawful firearm possession. At a consolidated sentencing hearing, imposition of sentence was suspended, and defendant was placed on three years' probation.

II. DISCUSSION

A. Heller

Defendant renews his Second Amendment argument, contending section 12021, subdivision (c)(1) is unconstitutional under Heller.

The Second Amendment to the United States Constitution 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 the Second Amendment protects an individual right "to possess and carry weapons in case of confrontation," unconnected with *1487 service in a militia. ( Heller, supra, 128 S.Ct. at p. 2797; see also pp. 2817-2818, 2821-2822.) The court struck down a District of Columbia law effectively banning the possession of handguns in the home. ( Id. at pp. 2817-2819.)

More recently, in McDonald v. City of Chicago (2010) --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 ( McDonald ), the court held the Second Amendment right recognized in Heller is "fully applicable to the States." ( Id. at p. 3026 (plur. opn. of Alito, J.); id. at pp. 3058, 3088 (conc. opn. of Thomas, J.).) A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is "fundamental" to the American "scheme of ordered liberty" and is therefore incorporated in the due process clause of the Fourteenth Amendment. ( McDonald, at pp. 3036, 3050 (plur. opn. of Alito, J.).) In a concurring opinion, Justice Thomas agreed with the plurality's characterization of the Second Amendment right as "fundamental." ( Id. at p. 3059 (conc. opn. of Thomas, J.).)

Although it struck down the District of Columbia handguns ban, Heller recognized and affirmed certain traditional limitations on the right to bear arms. As the court noted, the Second Amendment does not grant "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." ( Heller, supra, 128 S.Ct. at p. 2816.) Heller identified an expressly nonexclusive list of "presumptively lawful regulatory measures," stating "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. 2816-2817 & fn. 26; accord, **221 McDonald, supra, 130 S.Ct. at p. 3047 (plur. opn. of Alito, J.) [reiterating these categories of permissible firearm regulations].) In so doing, Heller recognized that some individuals, presumably including felons and the mentally ill, may be "disqualified" from exercising Second Amendment rights. ( Heller, at pp. 2816-2817, 2822 ["Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home"].)

B. The Second Amendment Claim

The Flores court relied on Heller 's express authorization of statutes disqualifying felons from exercising Second Amendment rights to uphold the *1488 constitutionality of section 12021, subdivision (c). Although recognizing the defendant in Flores had been convicted of a misdemeanor, rather than a felony, the court held, "We find this [distinction] unconvincing. 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. [Citations.] Consequently, we do not read Heller to undermine the constitutionality of Flores's section 12031 [ sic: 12021] conviction." ( Flores, supra, 169 Cal.App.4th at p. 575, 86 Cal.Rptr.3d 804.)

Defendant argues we should apply strict constitutional scrutiny to strike down section 12021, subdivision (c)(1), contrary to the approach of Flores.⁴ In holding the District of Columbia handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." ( Heller, supra, 128 S.Ct. at pp. 2817-2818, fn. omitted.) The court did, however, imply that some elevated level of scrutiny was appropriate by rejecting the "rational-basis" test as too lenient. As the court reasoned in a footnote, "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 pp. 2817-2818, fn. 27.)

For purposes of constitutional analysis under Heller, however, there is a significant difference between the D.C. handgun ban and Penal Code section 12021. The D.C. statute was one of general application that did not fit within the traditional regulations described by Heller as "presumptively lawful." ( Heller, supra, 128 S.Ct. at pp. 2816-2817, fn. 26.) In contrast, as Flores held, section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction...