People v. Ellison
| Decision Date | 28 June 2011 |
| Docket Number | No. E050395.,E050395. |
| Citation | 196 Cal.App.4th 1342,2011 Daily Journal D.A.R. 9693,11 Cal. Daily Op. Serv. 8146,128 Cal.Rptr.3d 245 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Carl Wayne ELLISON, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Phillip I. Bronson, Encino, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Randy Einhorn, and Andrew Mestiman, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant was convicted of unlawfully carrying a concealable firearm in a vehicle (Pen.Code, § 12025, subd. (a)(1)), but acquitted of three other charges. On appeal, defendant challenges his conviction on the grounds that (1) Penal Code section 12025, subdivision (a)(1), infringes on his right to bear arms, as guaranteed by the Second Amendment of the federal Constitution, and (2) his conviction was the result of prosecutorial misconduct during summation to the jury. We affirm.
Because defendant was acquitted of the counts relating to the incident leading up to his detention and arrest for carrying a concealed firearm in a vehicle, we will not recount all of the facts relating to those counts.
On January 20, 2009, Deputy Cox was dispatched to an address in Corona based on a report that an ex-roommate, who had made threats earlier, was parked in his vehicle outside the reporting party's residence, and that a firearm was involved. The deputy and her partner approached the vehicle, a small pickup truck, from behind, and found defendant asleep in the driver's seat in the cab of the truck.
Deputy Cox knocked on the window, and instructed defendant to show his hands. The deputy asked defendant if he had a gun, and defendant replied in the affirmative, reaching toward the floorboard. The deputy instructed defendant not to reach down and to show his hands; then she removed him from the vehicle. Under the floor mat on the driver's side of the cab of the truck, the deputy found a small, loaded Beretta .25–caliber semi-automatic handgun. Defendant was placed in a patrol car.
After detaining defendant in the patrol car, the deputy interviewed Eric H., the reporting party and defendant's former roommate, who was very nervous. Eric described threats made by defendant. The deputy then interviewed Cesar S., who also reported threats made by defendant. Defendant was charged with assault with a firearm (Pen.Code, § 245, subd. (a)(2), count 1) and criminal threats (Pen.Code, § 422, count 2), respecting Cesar S. As to each count, it was further alleged that defendant personally used a firearm (Pen.Code, § 12022.5, subd. (a)), and as to count 2, it was further alleged the crime was a hate crime. (Pen.Code, § 422.75, subd. (a).) The information also alleged that defendant unlawfully carried a concealed firearm that was loaded (Pen.Code, § 12025, subd. (b)(6), count 3), and criminal threats as to Eric H. (Pen.Code, § 422, count 4.)
Following a trial by jury, defendant was acquitted of counts 1, 2, and 4, and found guilty of count 3. The jury made a true finding that defendant was not listed as the registered owner of the firearm 1 and that it was loaded within the meaning of Penal Code section 12031, subdivision (g). He was placed on informal probation for two years and timely appealed.
Defendant challenges his conviction for carrying a concealed weapon within a vehicle, on the ground that the statute is unconstitutionally overbroad, infringing on his constitutional right to bear arms under the Second Amendment of the United States Constitution, because it makes no provision for an individual's right to self-defense. We conclude that the conviction of possession of a concealed weapon within a vehicle does not contravene defendant's Second Amendment rights, as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637( Heller ).2
Amendment II 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., 2nd Amend.) The Second Amendment protects an individual right to possess and carry weapons in case of confrontation. ( Heller, supra, 554 U.S. at pp. 592, 595, 128 S.Ct. 2783.) The 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, 177 L.Ed.2d 894.)
Neither Heller nor McDonald discussed the applicable standard of review; however, some cases have suggested that an “intermediate scrutiny” (see United States v. Miller (W.D.Tenn.2009) 604 F.Supp.2d 1162, 1169, 1171–1172) or “heightened scrutiny” is applicable under the Second Amendment ( United States v. Masciandaro (4th Cir.2011) 638 F.3d 458, 463; see also Nordyke v. King (9th Cir.2011) ––– F.3d ––––, ––––, 2011 WL 1632063, *3), while at least one court would apply strict scrutiny to all gun-control regulations. (See United States v. Engstrum (D.Utah 2009) 609 F.Supp.2d 1227, 1231–1232.) The Nordyke court observed that the Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny applies only if a regulation substantially burdens the right to keep and to bear arms for self-defense. ( Nordyke, at p. ––––, 2011 WL 1632063 at p. *3.) Application of strict scrutiny to every gun-control regulation would be inconsistent with Heller's reasoning because Heller “sorted such regulations based on the burden they imposed on the right to keep and to bear arms for self-defense” ( Nordyke, at p. ––––, 2011 WL 1632063 at p. *5), and referred to “presumptively lawful” gun regulations. ( Heller, supra, 554 U.S. at pp. 626–627, and fn. 26, 128 S.Ct. 2783.)
Absent any specific direction from the Supreme Court, we adopt the “intermediate scrutiny” standard, because the statute, on its face, does not completely prohibit or unduly burden the right of law abiding persons to bear arms. The law at issue in Heller totally banned handgun possession in the home, and required 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, 128 S.Ct. 2783.) It concluded that a total ban on the possession of handguns in the home, without an exception for self-defense, was unconstitutional. ( Id. at p. 630, 128 S.Ct. 2783.)
However, the Supreme Court observed that the right is not unlimited. ( Heller, supra, 554 U.S. at pp. 595, 626, 128 S.Ct. 2783.) The “right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” ( Ibid.) The court acknowledged that the majority of 19th–century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment. ( Ibid.) It also cautioned that its holding should not be taken to cast doubt on longstanding prohibitions including 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, 128 S.Ct. 2783.) In so stating, the court indicated its list was not an exhaustive analysis, but merely examples of “presumptively lawful regulatory measures.” ( Id. at p. 627, fn. 26, 128 S.Ct. 2783.)
Shortly after Heller was decided, the First Appellate District, Division One, concluded that Penal Code section 12025 was constitutional in the face of challenges identical to those posited here in People v. Yarbrough (2008) 169 Cal.App.4th 303, 86 Cal.Rptr.3d 674. In that case, the reviewing court determined that Penal Code section 12025, subdivision (a), does not broadly prohibit or even regulate the possession of a gun in the home for lawful purposes of confrontation or self-defense, as was the case with the District of Columbia law at issue in Heller.( Yarbrough, at p. 313, 86 Cal.Rptr.3d 674.) The court reasoned that unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized “ ‘threat to public order,’ ” and is “ ‘prohibited as a means of preventing physical harm to persons other than the offender.’ ” ( Id. at p. 314, 86 Cal.Rptr.3d 674, quoting People v. Hale (1974) 43 Cal.App.3d 353, 356, 117 Cal.Rptr. 697.)
Yarbrough noted that Heller “specifically expressed constitutional approval of the accepted statutory proscriptions against carrying concealed weapons” ( Yarbrough, 169 Cal.App.4th at p. 314, 86 Cal.Rptr.3d 674, citing Heller, supra, 554 U.S. at p. 678, 128 S.Ct. 2783), before concluding that the prohibition on the carrying of a concealed weapon without a permit continues to be a lawful exercise by the state of its regulatory authority notwithstanding the Second Amendment. ( Yarbrough, at p. 314, 86 Cal.Rptr.3d 674.) We agree.
The United States Supreme Court expressly included longstanding prohibitions against carrying concealed weapons in its non-exhaustive list of presumptively lawful restrictions on the right to bear arms. ( Heller, supra, 554 U.S. at p. 626, 128 S.Ct. 2783.) Carrying a concealed or concealable firearm, without a permit, in a vehicle, presents a “ ‘threat to public order’ ” that may be “ ” ( Yarbrough, supra, 169 Cal.App.4th at p. 314, 86 Cal.Rptr.3d 674.) As the court in Yarbrough observed, a person who carries a concealed firearm on his person or in a vehicle, which permits him immediate access to the firearm but...
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