96 Cal.App.5th 573
Cal. Ct. App.2023Background
- In Jan 2021 deputies stopped a motel‑parked car Allen was driving and found a loaded, operable handgun in his waistband; Allen stipulated he was not the gun’s registered owner.
- A search of the vehicle produced methamphetamine, a glass pipe (used for meth), a box of nine‑mm rounds, and a shotgun shell; Allen admitted the methamphetamine and said he had last used about an hour earlier.
- A jury convicted Allen of (1) possession of a controlled substance while armed with a loaded, operable firearm (Health & Safety Code §11370.1, subd. (a)) and (2) carrying a loaded handgun in a vehicle, unregistered (Pen. Code §25850, subds. (a), (c)(6)).
- The trial court sentenced Allen to two years on count 1 and a concurrent 16 months on count 2, refusing to stay either sentence under Penal Code §654.
- On appeal Allen raised facial Second Amendment challenges (relying on Bruen). The Court of Appeal rejected both constitutional challenges but agreed the concurrent sentences violated §654; it vacated the sentence and remanded for resentencing to stay one term.
Issues
| Issue | People’s Argument | Allen’s Argument | Held |
|---|---|---|---|
| 1. Does Health & Safety Code §11370.1 (possession of controlled substances while armed) violate the Second Amendment? | Statute targets non‑law‑abiding criminal conduct not protected by the Second Amendment; Gonzalez remains controlling. | Bruen requires historical analogues and none exist prohibiting drug‑users from being armed. | Rejected. The conduct falls outside Second Amendment protection; Gonzalez remains good law. |
| 2. Does Pen. Code §§25850(a) and (c)(6) (carrying a loaded, unregistered firearm in a vehicle) violate the Second Amendment? | Registration/licensing regimes are consistent with Bruen; Bruen did not invalidate such requirements; Allen did not attack CA registration scheme. | Bruen protects carrying a loaded, unregistered firearm in a vehicle. | Rejected. Bruen does not forbid registration/licensing requirements; challenge fails. |
| 3. Does Bruen displace the first‑step inquiry applied in Gonzalez (i.e., whether the conduct is covered by the Second Amendment)? | First‑step inquiry—whether conduct is protected—survives Bruen; if conduct is unprotected, historical analysis is unnecessary. | Bruen requires historical analogues in all cases. | Court: First‑step inquiry survives Bruen; no historical analysis required for unprotected criminal conduct. |
| 4. Did the trial court violate Penal Code §654 by imposing separate punishments for the two firearm convictions? | People conceded error on appeal. | Single possession/act; punishing both counts violates §654. | Rejected sentencing: sentence vacated and remanded so the trial court may stay one sentence under §654. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess arms for self‑defense in the home but warns Second Amendment is not unlimited)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the states)
- New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (establishes historical‑tradition test and holds means‑end balancing improper)
- People v. Gonzalez, 75 Cal.App.5th 907 (2022) (upholds HS §11370.1 as targeting unprotected criminal conduct; remains good law post‑Bruen)
- People v. Jones, 54 Cal.4th 350 (2012) (single possession of one firearm on one occasion punishable only once under §654)
- People v. Deloza, 18 Cal.4th 585 (1998) (when §654 applies, court must impose sentence for one conviction and stay the other)
- People v. Alexander, 91 Cal.App.5th 469 (2023) (discusses Bruen and explains the surviving first‑step inquiry under post‑Bruen analysis)