The People v. Howard

• Docket Number: C097220
• Decision Date: 01 November 2023
• Parties: THE PEOPLE, Plaintiff and Appellant, v. PEDRO JAVELLE HOWARD, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Appellant, v. PEDRO JAVELLE HOWARD, Defendant and Respondent.

C097220

California Court of Appeals, Third District, Sacramento

November 1, 2023

NOT TO BE PUBLISHED

Super Ct. No. 21FE008024

EARL P. J.

Finding that the firearm licensing scheme embodied in Penal Code section 26150^[1]violates the Second Amendment of the United States Constitution, the trial court sustained defendant Pedro Javelle Howard's demurrer and dismissed a charge of carrying a loaded firearm in public, prohibited under section 25850. Upon consideration of the People's appeal, we reverse the judgment and order dismissing the charge and remand the matter with direction to the trial court to vacate the order sustaining defendant's demurrer, enter a new order overruling the demurrer, and reinstate the charge.

SECOND AMENDMENT PRECEDENT

The Second Amendment 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." (U.S. Const., 2d Amend.) This verbiage has fueled copious debate surrounding the nature and holders of this right. Over the last 15 years, the United States Supreme Court has interpreted this right, at its core, to provide law-abiding, responsible citizens the right to carry a handgun at home and in public for the central purpose of selfdefense - subject to limitations. Three cases demonstrate the evolution of the essence of this right.

In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the United States Supreme Court struck down laws in the District of Columbia that banned the possession of operable handguns inside the home. (Id. at p. 635.) The court held that the Second Amendment confers "an individual right to keep and bear arms" (Heller, at p. 595) for the "core lawful purpose of self-defense" (id. at p 630), which the court identified as being "central to the Second Amendment right" (id. at p. 628). The court concluded that the District of Columbia's ban on possessing operable weapons in the home violated the Second Amendment's guarantee of "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Heller, at p. 635.) Accordingly, the court concluded that "[a]ssuming that [the plaintiff] 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." (Ibid.)

Heller explained, however, that "the Second Amendment is not unlimited" and is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Heller, supra, 554 U.S. at p. 626.) The court cautioned that "nothing" in its 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. 626627.) The court also noted that its list of "presumptively lawful regulatory measures" was merely illustrative, not exhaustive. (Id. at p. 627, fn. 26.)

Two years later, in McDonald v. Chicago (2010) 561 U.S. 742 (McDonald), the court held that the Second Amendment "right to keep and bear arms for self-defense," particularly handguns, applies to the states through the Fourteenth Amendment. (McDonald, at pp. 789, 791.) The court struck down local laws similar to the ones stricken in Heller. (Id. at p. 750.)

Last year, in N.Y. State Rifle & Pistol Assn, Inc. v. Bruen (2022) 597 U.S.__ (Bruen), the court held the Second Amendment right, recognized in Heller and McDonald, of "an ordinary, law-abiding citizen to possess a handgun in the home for self-defense" must be generally extended to public areas. (Id. at p.__ .) New York state's licensing scheme challenged in Bruen, required that, to obtain a license to carry a weapon outside of the home, an individual had to show that" 'proper cause'" existed to issue such license, i.e., a particularized need for selfdefense beyond that of the general public. (Id. at p.__ .) A licensing officer had the discretion to deny licenses based on a perceived lack of need or suitability. (Ibid.) In light of the recognition of the Second Amendment right to possess a handgun outside the home for self-defense purposes, the Bruen court determined that the burden then fell on the respondents to show that New York's restriction of that right through the proper-cause requirement was consistent with the nation's historical tradition of firearm regulation. (Id. at p.__ [142 S.Ct. at p__. 2135].)

The Bruen court found no evidence of a historical tradition of conditioning the constitutional right to bear arms upon an individual's demonstration of a special need to exercise that right and concluded that New York's proper-cause requirement violates the Second Amendment, applicable to the states through the Fourteenth Amendment, "in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Bruen, supra, 597 U.S. at p.__ .)

The Bruen court called out six other jurisdictions, including California, which have laws similar to New York in that they require a" 'good'" or" 'proper'" cause for being armed. (Bruen, supra, 597 U.S. at p__., fn. 2 .) The court labeled these as" 'may issue'" licensing schemes because, it opined, "authorities have discretion to deny . . . licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license." (Id. at p. __.) By contrast, Bruen identified 43 states having" 'shall issue'" licensing schemes, in which a license must be issued when an individual satisfies certain objective requirements. (Id. at p.__ .)

FACTUAL AND PROCEDURAL BACKGROUND

In May 2021, the prosecutor in Sacramento County charged defendant with carrying a loaded firearm on his person or in a vehicle in violation of section 25850, subdivision (a) and further alleged that defendant was not listed with the Department of Justice as the registered owner of the firearm (§ 25850 subd. (c)(6)).

In August 2022, prior to the preliminary hearing, defendant demurred^[2] and argued the charge was unconstitutional under Bruen, supra, 597 U.S.__ . Defendant contended the only way an ordinary citizen could avoid criminal liability for carrying a loaded firearm in public for the general purpose of self-defense is if they obtain a concealed carry weapons permit under section 26150 et seq. (See § 26010 ["Section 25850 does not apply to the carrying of any handgun by any person as authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5"].) Yet, defendant argued, California's licensing scheme is nearly identical to the New York licensing scheme the United States Supreme Court held to be unconstitutional in Bruen. According to defendant, as a result of Bruen, California's entire firearm licensing scheme is invalid because it is based on impermissible subjective criteria such as "good moral character" and "good" or "proper cause" and because it provides that the issuing authority "may issue" a license upon such a showing. Because California has not defined "good moral character" or "good cause," this scheme does not contain clear criteria for issuing licenses and instead allows the local law enforcement executive "near unbridled discretion" to implement definitions of his or her own. He claimed that "the statute cannot be divorced from the unconstitutional provision and still have independent enforcement" because it is constitutionally offensive in three ways: (1) it is a "may issue" scheme; (2) the "good moral character" is a standard far too loosely defined; and (3) the "good cause" requirement is improper. He argued that if each offensive portion of the statute was stricken, it would render the statute incomprehensible. He requested the court dismiss the action because it lacked jurisdiction to proceed to trial under a facially unconstitutional statute. Defendant further claimed case law governing standing in First Amendment jurisprudence extends to afford him standing here, arguing a "person faced with an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which [t]he law purports to require a license. Where that person does so, the law will not preclude constitutional attack because the defendant merely did not apply for a permit." He also claimed that because he faced imminent criminal prosecution, he has suffered harm sufficient to provide him with standing to mount this challenge.

The prosecution challenged defendant's standing, arguing there was no evidence he ever applied for a license under the statutes. The prosecution also presented evidence that Sacramento County defined "good moral character" based on criminal history. Similarly, Sacramento County did not define "good cause" offensively under Bruen; "good cause" was satisfied if the applicant desired the license for purposes of selfdefense. Nevertheless, the prosecution contended that, at most, the holding in Bruen invalidated only the "good cause" requirement and severing that requirement from the statutes was possible, thereby rendering the statutes constitutionally valid.

The trial court agreed with defendant. Citing to Shuttlesworth v. Birmingham (1969) 394 U.S. 147 and Aaron v. Municipal Court (1977) 73 Cal.App.3d 596 the trial court concluded defendant need not attempt to comply with the unconstitutional licensing requirement in order to have standing to challenge the statute in the...