THE PEOPLE, Plaintiff and Respondent, v. JOSHUA PAUL ALLEN, Defendant and Appellant.
E079475
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed 10/18/23
(Super.Ct.No. FVI21000240)
CERTIFIED FOR PARTIAL PUBLICATION*
OPINION
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Joshua Paul Allen appeals from his convictions for possessing a controlled substance while armed with a firearm (
BACKGROUND
One afternoon in January 2021, law enforcement conducted a traffic stop of the car that Allen was driving. When sheriff‘s deputies approached the car, it was parked in a motel parking lot. Allen had a loaded firearm in the waistband of his pants. The gun was operable, and its magazine contained five bullets. Allen told one of the deputies that he had taken the gun from someone else within the past hour to prevent that person from using it to injure another person. At trial, Allen stipulated that he was not the firearm‘s registered owner.
A deputy searched Allen‘s car and found a box of nine-millimeter ammunition containing 18 bullets, methamphetamine, a shotgun shell, and a glass pipe that appeared to have been used to smoke methamphetamine. Allen admitted that the methamphetamine belonged to him. Allen told the deputy that he had last used methamphetamine one hour earlier.
A jury convicted Allen of one felony count of possessing a controlled substance while armed with a firearm (
The trial court sentenced Allen to two years in state prison for count 1 and imposed a concurrent sentence of 16 months for count 2. The court rejected defense counsel‘s argument that the court should stay one of the sentences under
DISCUSSION
A. Constitutional Challenges
Allen challenges the facial validity of the laws prohibiting possession of controlled substances while armed with a firearm (
1. Standard of Review
“In analyzing a facial challenge to the constitutionality of a statute, we consider ‘only the text of the measure itself, not its application to the particular circumstances of an individual.’ [Citation.] ‘On a facial challenge, we will not invalidate a statute unless it “pose[s] a present total and fatal conflict with applicable constitutional prohibitions.“’ [Citation.] Facial challenges may be raised for the first time on appeal.” (People v. Alexander (2023) 91 Cal.App.5th 469, 474 (Alexander).)
“‘The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.‘” (Alexander, supra, 91 Cal.App.5th at p. 474.)
2. The Second Amendment
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.” (
In Alexander, we rejected a defendant‘s Second Amendment challenge to the laws prohibiting felons from possessing firearms (
In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the United States Supreme Court “held that the Second Amendment confers ‘an individual right to keep and bear arms’ (Heller, supra, at p. 595) for the ‘core lawful purpose of self-defense’ (id. at
Heller nevertheless explained 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 Heller 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.‘” (Alexander, supra, 91 Cal.App.5th at p. 475, quoting Heller, at pp. 626-627.)
Following Heller, the United States Supreme Court held that the Second Amendment applies to the states through the Fourteenth Amendment. (McDonald v. City of Chicago (2010) 561 U.S. 742, 791 (McDonald); Alexander, supra, 91 Cal.App.5th at p. 475.) After Heller, lower courts adopted a two-step test for analyzing challenges under the Second Amendment. (Bruen, supra, 142 S.Ct. at pp. 2125-2126; Alexander, at p. 475.) Applying that test, courts “first asked ‘“whether the challenged law burden[ed] conduct that [fell] within the scope of the Second Amendment‘s guarantee” of protecting the right of responsible, law-abiding citizens to possess firearms to protect their home.’ [Citation.] If the law did not impose such a burden, then the inquiry ended. [Citation.] But if the law ‘infringe[d] on a law-abiding citizen‘s right to possess firearms to protect their home, then the court [was required to] inquire into “the strength of the government‘s justification” for the law by balancing—under the appropriate level of scrutiny—the statute‘s objectives against the means it employ[ed] to accomplish those ends.‘” (Alexander, at p. 476.)
As we explained in Alexander, the United States Supreme Court rejected that approach in Bruen, “concluding that the test was ‘one step too many’ and that Heller did not support application of the second step‘s means-end inquiry.” (Alexander, supra, 91 Cal.App.5th at p. 476, quoting Bruen, supra, 142 S.Ct. at p. 2127.) “In rejecting that approach, the court noted that ‘[t]he Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense.‘” ( Alexander, at p. 476, quoting Bruen, at p. 2131.)
Bruen set forth a new test for analyzing constitutionality under the Second Amendment, as follows: “When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.‘” (Bruen, supra, 142 S.Ct. at pp. 2129-2130; Alexander, supra, 91 Cal.App.5th at p. 476.) In determining “whether a modern firearm regulation has a ‘relevantly similar’ historical analogue [(Bruen, at p. 2132)], courts should consider ‘at least two metrics: how and why the regulations burden a law-abiding citizen‘s right to armed self-defense.‘” (Alexander, at p. 476.)
Applying that analytical framework, ”Bruen concluded that New York‘s concealed carry licensing regime, which required applicants to demonstrate proper cause to get a license, was unconstitutional ‘in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.‘” (Alexander, supra, 91 Cal.App.5th at p. 476.) In reaching its conclusion, the court contrasted the proper cause requirement in “may issue” concealed carry licensing regimes such as New York‘s and California‘s (Bruen, supra, 142 S.Ct. at p. 2124) “with ‘shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability’ [(Bruen, at p. 2123)]. The court noted that ‘nothing’ in its ‘analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].“‘” (Alexander, at p. 477.)
Bruen held “‘that the Second and Fourteenth Amendments protect an individual‘s right to carry a handgun for self-defense outside of the home.’ [(Bruen, supra, 142 S.Ct. at p. 2122.)] The court indicated that Bruen was ‘consistent with Heller and McDonald,’ which had ‘recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.‘” (Alexander, supra, 91 Cal.App.5th at p. 477.)
3. Possession of Controlled Substances While Armed
Allen first challenges the constitutionality of
In Gonzalez, we concluded that the prohibition in
Given that in Gonzalez we concluded that
Allen‘s arguments cast no doubt on the conclusion. Allen focuses exclusively on the second step of the Bruen analysis, arguing that there were “no regulation[s] in or around 1791 that prohibited individuals in possession of any drug from also being armed” and that there are no other relevant, analogous prohibitions. That argument does not undermine our analysis in Gonzalez, because under Bruen we need not analyze whether a regulation is
4. Carrying a Loaded and Unregistered Firearm in a Vehicle
Allen also contends that the law criminalizing “possession of a loaded, unregistered firearm in vehicle” violates the Second Amendment. (
Allen argues that carrying a loaded and unregistered “firearm in a vehicle is now a constitutional right under Bruen.” (Initial capitalization and italicization omitted.) The argument is foreclosed by Heller and Bruen. Heller explained 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.) And Bruen indicated that it was “consistent with Heller.” (Bruen, supra, 142 S.Ct. at p. 2122.) Moreover, Bruen emphasized that “nothing in [its] analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes,” which include background check and safety course requirements, because such licensing schemes appeared “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.‘” (Id. at p. 2138, fn. 9.) Thus, according to Bruen, the Second Amendment does not prohibit states from requiring individuals to submit to certain licensing requirements in order to legally possess a firearm. Bruen accordingly does not stand for the proposition that the Second Amendment affords individuals the unfettered right to carry an unregistered firearm while in a vehicle.
Moreover, the criminalization of carrying a loaded and unregistered firearm in a vehicle (
Given that Bruen does not prohibit states from regulating firearm possession and Allen does not challenge the constitutionality of California‘s firearm licensing requirements, we conclude that Allen‘s challenge to the constitutionality of the prohibition on carrying a loaded and unregistered firearm while in a vehicle fails.
B. Section 654
Allen argues that the trial court violated
DISPOSITION
We vacate Allen‘s sentence and remand the matter to the trial court for resentencing to determine whether to stay the sentence for count 1 or count 2 under
CERTIFIED FOR PARTIAL PUBLICATION
MENETREZ
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.