47 Cal.App.5th 917
Cal. Ct. App.2020Background
- Undercover officer purchased multiple fully automatic short-barreled AR-15 rifles (each with 40‑round magazines), a TEC‑9 with a 32‑round magazine, pistols, and narcotics from Jason Broadbent in July–August 2015.
- Broadbent was convicted after a court trial of numerous counts including selling assault weapons (§ 30600), selling large‑capacity magazines (§ 32310), possession of firearms by a felon (§ 29900), selling heroin and meth, and unlicensed sale of firearms; the court found a 2001 prior strike and three prior prison terms.
- The trial court denied Broadbent’s Romero motion and sentenced him to 53 years 8 months; Broadbent appealed raising multiple issues.
- Appellate issues included: (1) whether § 32310 (sale/possession ban on large‑capacity magazines) violates the Second Amendment; (2) whether Broadbent’s 2001 conviction (committed when he was 14) may be used as a prior strike or for § 667.5 enhancements; (3) whether the trial court abused its discretion in denying a Romero dismissal of the strike; (4) whether multiple punishments must be stayed under § 654 for overlapping possession/sale counts; and (5) sentencing calculation errors and ability‑to‑pay (Dueñas) challenges.
- The Court affirmed convictions but: (a) rejected the Second Amendment challenge to § 32310; (b) rejected Estrada/Equal Protection challenges to using the 2001 conviction as a strike and found no abuse of discretion in denying Romero; (c) ordered all prior § 667.5 prison‑term enhancements stricken under SB 136 retroactivity; (d) ordered multiple sentences stayed under § 654 (possession counts and magazine sales tied to weapons); (e) vacated sentence and remanded for corrected terms and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 32310 (ban on large‑capacity magazine sales/possession) | State interest in public safety and reducing gun violence supports the law under intermediate scrutiny. | § 32310 infringes Second Amendment rights and lacks narrow tailoring; relies on Duncan (S.D. Cal.). | Rejected. Court applied intermediate scrutiny, found a reasonable fit to public safety goals and upheld § 32310. |
| Use of 2001 conviction (age 14) as a prior strike | Prior conviction is final and remains a valid strike; SB 1391 does not retroactively remove strikes. | SB 1391 (raising age for adult prosecution) and Estrada require retroactive application so the 2001 conviction cannot be a strike. | Rejected. Estrada inapplicable because conviction was final; SB 1391 does not redesignate prior convictions. |
| Romero motion to strike prior strike | Strike should remain because defendant’s record and current offenses support Three Strikes application. | Denial was abuse of discretion given youth at time of strike and legislative/ballot changes reflecting different treatment of juveniles. | Denial affirmed. Trial court considered relevant factors and did not abuse discretion. |
| Section 654 — overlapping punishments for sale and possession (firearms & magazines) | Separate statutes for weapons and magazines can support separate punishments; magazines and guns are distinct contraband. | Possession of the firearms (and attached magazines) was incidental to the sales; multiple punishments violate § 654. | Granted in part. Court ordered stays: all but one possession sentence stayed and magazine sales tied to included magazines cannot be separately punished where magazines were part of the same indivisible transaction. |
| Prior prison‑term enhancements (§ 667.5) | Enhancements were properly alleged and proved. | SB 136 (2019) limits § 667.5(b) enhancements to sexual‑violent offenses; retroactive benefit requires striking these priors. | Granted. People conceded and court struck the prior prison‑term enhancements and remanded for resentencing. |
| Sentencing calculation errors & Dueñas ability‑to‑pay challenge | Sentencing clerical errors should be corrected; no Dueñas requirement absent Supreme Court guidance. | Court miscalculated specified terms; Dueñas requires ability‑to‑pay hearing for fines/assessments. | Court vacated sentence and remanded for correction of miscomputed terms; rejected Dueñas challenge (followed cases holding no present ability‑to‑pay hearing required pending Supreme Court review). |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual self‑defense right but is not unlimited)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment applies to the states via Fourteenth Amendment)
- Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (upheld intermediate scrutiny for large‑capacity magazine restrictions)
- Worman v. Healey, 922 F.3d 26 (1st Cir. 2019) (rejected challenge to sale/possession bans on certain semiautomatic weapons and magazines)
- Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, 910 F.3d 106 (3d Cir. 2018) (upheld magazine restriction under intermediate scrutiny)
- Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (upheld ban on certain assault weapons and related magazines)
- Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (application of Heller principles to magazine limits)
- People v. Buycks, 5 Cal.5th 857 (2018) (treatment of resentencing/redesignation rules and retroactivity under Proposition 47)
- People v. Carmony, 33 Cal.4th 367 (2004) (standard for reviewing Romero motions and abuse of discretion)
- People v. Jones, 54 Cal.4th 350 (2012) (section 654 analysis re divisible acts and separate items of contraband)
- People v. Lopez, 119 Cal.App.4th 132 (2004) (held possession of firearm and ammunition loaded into it constituted indivisible conduct for § 654 purposes)