THE PEOPLE, Plaintiff and Appellant, v. JAIME MOSQUEDA et al., Defendants and Respondents.
C097326
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 11/20/23
(Super. Ct. No. 21FE016941). APPEAL from a judgment of the Superior Court of Sacramento County, Bunmi O. Awoniyi, Judge. Reversed with directions. CERTIFIED FOR PARTIAL PUBLICATION* * Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.
No appearance for Defendants and Respondents.
The high court also held that the Second Amendment right is “subject to certain reasonable, well-defined restrictions.” (Bruen, supra, 142 S.Ct. at p. 2156.) The court clarified a test it had earlier applied in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) for determining whether a government regulation violates that right. The court held that “when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” (Bruen, at p. 2126.) Accordingly, to justify a firearms regulation, the government “must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation.” (Ibid.) A court may declare that an individual‘s conduct falls outside the Second Amendment‘s ” ‘unqualified command’ ” only if the regulation is consistent with the nation‘s historical tradition. (Ibid.)
Applying that test, the Bruen court held that an element of New York‘s handgun licensing regime violated the Second Amendment right to carry a handgun in public for self-defense. The regime conditioned issuance of a license to carry a concealed firearm on a discretionary finding of an individual‘s showing of “proper cause,” which New York courts had defined as a special need for self-defense. (Bruen, supra, 142 S.Ct. at pp. 2122-2123.) The Supreme Court concluded that New York did not establish a historical tradition of American governments requiring law abiding citizens to demonstrate a special need for self-defense different from the general community in order to carry arms in public. (Id. at p. 2156.)
California‘s handgun licensing regime is similar to New York‘s. (Bruen, supra, 142 S.Ct. at pp. 2123-2124.) Carrying a concealed handgun in public, whether loaded or unloaded, is generally prohibited unless the individual obtains a license. (Peruta v. County of San Diego (9th Cir. 2016) 824 F.3d 919, 925, abrogated in part by Bruen, at p. 2122.) The county sheriff or chief of police “may issue” a license to carry a concealed handgun upon proof that “good cause” exists for issuing the license. (
Relying on Bruen, individuals charged in California with unlawfully possessing a handgun have contended that their charges and resulting convictions are unconstitutional. They have argued, unsuccessfully, that Bruen rendered California‘s entire licensing scheme facially unconstitutional, and as a result, it was unconstitutional to punish nonfelons such as them for carrying a firearm in public solely because they did not have a license. (See In re T.F.-G. (2023) 94 Cal.App.5th 893; People v. Miller (2023) 94 Cal.App.5th 935 (Miller); In re D.L. (2023) 93 Cal.App.5th 144.)
Defendants and respondents Jaime Mosqueda and Juanita Mosqueda successfully raised the same contention against their unlawful possession charges by demurrer in the trial court. We agree with our judicial peers that defendants had standing to raise the defense by demurrer, but also that Bruen did not render California‘s entire licensing scheme or the charges against them unconstitutional. The offending “good cause” requirement is severable from the remainder of the licensing statute, as is the “good moral character” element which we assume only for purposes of argument to violate the test laid down in Bruen. Bruen is also not grounds for a facial attack on the discretionary
BACKGROUND AND HISTORY OF THE PROCEEDINGS
We derive the facts of the arrest from the People‘s opposition to defendants’ demurrers. After executing a search warrant at a residence, detectives observed defendant Juanita Mosqueda drive up to the residence, exit her car, and walk into the residence‘s side yard. Defendant Jaime Mosqueda also drove up to the residence. Juanita exited the side yard with a black bag. She gave the bag to Jaime, who then drove away. Detectives stopped Jaime‘s car, and they retrieved the bag from the passenger floorboard. They found a loaded handgun inside the bag. The handgun was not registered to either defendant.
The People charged each defendant with unlawfully carrying a concealed firearm, carrying a loaded firearm on one‘s person or in a vehicle, and other charges not relevant here. (
Defendants asserted they had standing to contest the state licensing scheme by demurrer whether or not they applied for a license. They faced an injury capable of being redressed: imprisonment based on an unconstitutional statute. And First Amendment jurisprudence which granted standing to persons affected by unconstitutional licensing
The trial court sustained the demurrers and dismissed the action. It ruled that Bruen wholly invalidated California‘s licensing scheme. And because Bruen declared the public carrying of firearms to be “presumptively legal,” defendants could not be prosecuted under statutes criminalizing public carry without a license.
The trial court also held that defendants had standing to challenge the licensing scheme whether or not they applied for a license. The court relied on First Amendment standing law and found it applicable to rights protected under the Second Amendment.
The People appeal from the judgment of dismissal. They contend the trial court erred in finding that defendants had standing because defendants had not applied for and been denied a concealed carry license. The People assert the First Amendment standing cases relied on by the trial court do not apply.
The People also contend the trial court erred in holding that Bruen wholly invalidated California‘s concealed carry licensing scheme. They argue that Bruen invalidated only the “good cause” requirement. That requirement is severable from the rest of the licensing scheme which remains constitutional. The People claim that the trial court‘s interpretation of Bruen was overly broad.
Defendants did not file a respondent‘s brief.
DISCUSSION
I
Standard of Review
A demurrer challenges defects appearing on the face of the pleading and raises only issues of law. (People v. Biane (2013) 58 Cal.4th 381, 388.) We review the trial court‘s order de novo. (People v. Perlas (2020) 47 Cal.App.5th 826, 832.)
II
Standing
The People claim defendants lacked standing to challenge the constitutionality of the concealed carry licensing scheme by demurer because they did not suffer a constitutional injury. Specifically, defendants did not argue that they had applied for concealed handgun licenses and been denied. And even assuming Bruen invalidated the good cause requirement for a license, the People argue that defendants did not show they would have satisfied the remaining valid conditions for obtaining a license had they applied.
We assume, as the California Supreme Court does, that a criminal defendant may challenge the validity of the statute under which he or she is being prosecuted by demurrer. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091, fn. 10;
Before the trial court, defendants contended they had standing because the state was “seek[ing] to impose penal sanctions on a person when one of the required elements that the state must prove is unconstitutional. . . . [T]he Defendant has an injury—arrest—connected to the unconstitutional licensing scheme that can be redressed in our courts.”
Almost a century ago, the United States Supreme Court held that the standing requirement of obtaining a license before challenging the constitutionality of a licensing scheme does not apply when an individual is being criminally prosecuted under a facially unconstitutional statute. (Smith v. Cahoon (1931) 283 U.S. 553, 562 (Smith).)
In Smith, the defendant was prosecuted under Florida law for operating as a private carrier under a contract with a business without having obtained the required license. (Smith, supra, 283 U.S. at pp. 556, 561.) At the preliminary hearing, the defendant contended the statute as applied to him violated the due process and equal protection clauses of the Fourteenth Amendment, but he was held over for trial. (Id. at p. 556.) The Supreme Court stated that, in general, when a statute valid upon its face requires a license as a precondition to carrying on a business, “one who is within the terms of the statute, but has failed to make the required application, is not at liberty to complain because of his anticipation of improper or invalid action in administration.” (Id. at p. 562.) However, that rule does not apply “where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right. In the present instance, the appellant has been arrested and held for trial. He is in jeopardy, and the state court, entertaining his application for discharge, has denied the constitutional right asserted. The question of the validity of the statute, upon which the prosecution is based, is necessarily presented.” (Ibid.)
California courts have similarly held that a criminal defendant has standing to challenge the facial constitutionality of the licensing statute under which he or she is being prosecuted as violative of the First Amendment without having first sought a license. (See Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866, fn. 6 [parade without permit]; Burton v. Municipal Court (1968) 68 Cal.2d 684, 688 [operation of movie theater without a permit].)
Recently, in In re D.L., supra, 93 Cal.App.5th 144, the Court of Appeal held that standing existed in a case similar to ours. In that case, the juvenile court found true, among other allegations, an allegation that the juvenile unlawfully possessed a loaded
The Court of Appeal concluded the juvenile had standing. He had standing “because he is challenging the facial constitutionality of a criminal statute under which he has been convicted.” (In re D.L., supra, 93 Cal.App.5th at p. 156.) The court relied on Smith and the First Amendment cases’ holdings that a criminal defendant need not apply for a permit under a law that facially violated the person‘s First Amendment rights before challenging the law‘s facial constitutionality. (Id. at pp. 158-160Smith, it could not conclude the rule was strictly limited to First Amendment licensing cases. (Id. at p. 160.) Dicta in Bruen and Heller favorably comparing the Second Amendment to the First Amendment suggested the court should take a more cautious view of the People‘s argument on the issue of standing. (Ibid.)
In In re T.F.-G., supra, 94 Cal.Ap.5th 893, the Court of Appeal relied on In re D.L. to find standing. A juvenile was charged with violating section 25850 and was found to be a ward of the court. (Id. at p. 902.) The People contended the juvenile did not have standing to challenge the statute‘s constitutionality because he had not applied for a license. (Id. at p. 912.) The Court of Appeal disagreed. Citing to In re D.L., the court stated the juvenile was “challenging his wardship adjudication under a penal statute—an enforcement mechanism of the regulatory regime that he contends is unconstitutional.” (Id. at p. 913.)
We agree with our sister courts that defendants have standing in this instance to raise a facial constitutional challenge by demurrer against sections 25400 and 25850. They are being criminally prosecuted under statutes they claim are rendered unconstitutional on their face due to Bruen‘s invalidation of the licensing statute, section 26150. Sections 25400 and 25850 are the “enforcement mechanism[s] of the regulatory regime” they contend is unconstitutional and under which they now risk the loss of their liberty. (In re T.F.-G, supra, 94 Cal.App.5th at p. 913.) They thus have a concrete and actual beneficial interest in a justiciable controversy.
We recognize that almost all the cases allowing the facial challenge to proceed despite the party not having sought a permit arise in the context of the First Amendment. But in Heller and Bruen, the Supreme Court indicated that Second Amendment rights are entitled to an equal amount of protection. Reviewing historical sources to discern the meaning of the Second Amendment, the Heller court cited favorably to a 19th Century source, stating: ” ‘[G]overnment is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms . . . . The clause is analogous to the one securing the freedom of speech and of the press.’ ” (Heller, supra, 554 U.S. at p. 618, quoting J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152–153 (1868).)
The Bruen court explained that the historical tradition test it was applying to determine the scope of the Second Amendment was consistent with the test the court applied to restrictions on rights protected by the First Amendment. The court stated, “This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. [(Heller, supra, 554 U.S. at pp. 582, 595, 606, 618, 634-635.)] In that context, ’ [w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.’ [(United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803, 816; see also Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 777.)] In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. [(See Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003) 538 U.S. 600, 620, fn. 9.)] And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment‘s protections. [(See, e.g., United States v. Stevens (2010) 559 U.S. 460, 468-471 [placing the burden on the government to show that a type of speech belongs to a ‘historic and traditional categor[y]’ of constitutionally unprotected speech ‘long familiar to the bar‘] (internal quotation marks omitted)).)]” (Bruen, supra, 142 S.Ct. at p. 2130.)
We infer from the linkages the Supreme Court has drawn between the First and Second Amendments that extending First Amendment standing law to rights under the Second Amendment is not inconsistent with the Supreme Court‘s standing jurisprudence. Criminal prosecutions under laws that facially violate the Second Amendment offend a right the Supreme Court has declared is not a second-class right; it is a right that is above all other interests opposing it. With such a right at risk, a defendant in jeopardy of losing his or her liberty in violation of that right has standing to challenge the offending law facially without first applying for a required license.
The principal case relied on by the People in opposition, United States v. Decastro (2d Cir. 2012) 682 F.3d 160, does not convince us otherwise. In Decastro, the defendant was indicted for transporting firearms into his home state of New York which he had acquired outside that state, a violation of federal law. (Decastro, supra, 682 F.3d at pp. 161-162.) He moved to dismiss the indictment on the ground the federal statute facially violated his Second Amendment right to keep and bear arms under Heller, and that New York City‘s restrictive licensing requirements were tantamount to a ban. (Id. at p. 162.) The district court denied the motion and later found him guilty. (Id. at p. 163.) On appeal, the defendant contended the federal statute was facially unconstitutional under
Addressing the as-applied argument first, the court of appeal believed the premise of that argument was that New York‘s licensing scheme was itself unconstitutional. However, because the defendant had not applied for a license, he lacked standing to challenge the state‘s licensing laws. The court stated, ” ‘As a general matter, to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy’ ” except when applying for a license would have been a futile gesture. (Decastro, supra, 682 F.3d at p. 164.)
Unlike in the case before us, the Decastro defendant was bringing an as-applied challenge. Moreover, New York‘s licensing laws were not the enforcement mechanism for or had any relation to the federal regime under which he was being charged. As the court in In re D.L. stated, Decastro is distinguishable because the defendant there “could not have avoided the charge (transportation of firearms into New York from another state) by simply obtaining a license for possession.” (In re D.L., supra, 93 Cal.App.5th at p. 161.)
Furthermore, the Decastro court then addressed the defendant‘s facial challenge to the federal statute on the merits and held the statute did not violate the Second Amendment. (Id., supra, 684 F.3d at pp. 168-169.) Our conclusion that defendants have standing to raise their facial challenge to the licensing scheme is not contrary to Decastro.
Similarly, we find the People‘s reliance on the trial court decision of People v. Rodriguez (2022) 76 Misc.3d 494 [171 N.Y.S.3d 802] unpersuasive. That court relied on Decastro to hold that the criminal defendant before it lacked standing to challenge the state‘s handgun licensing regime when he had not first applied for a license. (Id. at pp. 496-497.)
Constitutionality and Severability
State law generally prohibits carrying a handgun in public, whether the gun is concealed or carried openly, and whether the gun is loaded or unloaded. (
Before the trial court, defendants contended that Bruen rendered California‘s licensing scheme unconstitutional in at least two respects. First, they argued that Bruen rendered section 26150, the licensing statute, unconstitutional. Bruen declared unconstitutional the elements of “good cause” and, they asserted, “good moral character,” two of the licensing requirements under section 26150 for obtaining a concealed carry license. Further, they argued that because section 26150 is unconstitutional, a person may not be prosecuted for violating it. The fact that the licensing statutes are phrased as defenses to the general prohibition did not matter because the general prohibition was unconstitutional.
Our colleagues in Miller, supra, 94 Cal.App.5th 935, recognized that defendants’ arguments at least as to section 25400 were based on the flawed premise that section 25400‘s ban of concealed firearms was unconstitutional if it was not accompanied by a valid licensing scheme. (Id. at p. 943.) The nation has a long, historical tradition of banning concealed carry, and such bans were lawful so long as citizens were allowed to carry firearms openly. (Id. at p. 944; Bruen, supra, 142 S.Ct. at pp. 2146-2147, 2150.) Bruen did not address a licensing scheme‘s impact on potential criminal charges for carrying a firearm without a license. (Miller, at p. 945.) Rather, Bruen recognized that historically, if a state banned both open and concealed carry, it was the open carry prohibition that conflicted with the constitution and was void. (Miller, at p. 946; Bruen, at p. 2147; see Nunn v. State (1846) 1 Ga. 243, 251.)
This point was dispositive in Miller: “Whatever constitutional defects may currently exist elsewhere in California‘s multifaceted statutory scheme regulating firearms, section 25400 is not itself unconstitutional because of them. To the contrary, [the defendant‘s] arguments that California‘s licensing scheme is invalid, if meritorious, would suggest other statutes such as the open carry prohibitions in sections 25850 and 26350 are unconstitutional, but the concealed carry prohibitions in section 25400 would remain valid post-Bruen because California would effectively no longer ban open carry.” (Miller, supra, 94 Cal.App.5th at p. 946.)
A. Bruen
Bruen arose in New York where the petitioners, law-abiding citizens, unsuccessfully applied for licenses to carry handguns in public for self-defense. New York law prohibited possessing any firearm inside or outside the home without a license. To obtain an unrestricted license to carry a firearm outside the home, the applicant had to prove that “proper cause” existed to issue it. (Bruen, supra, 142 S.Ct. at pp. 2122-2125.) New York courts defined proper cause as a special need for self-protection distinguishable from the general community. (Id. at p. 2123.) The petitioners were unable to make that showing.
To make that determination, courts will have to reason by analogy and determine whether a historical regulation and a modern regulation are ” ‘relevantly similar.’ ” (Bruen, supra, 142 S.Ct. at p. 2132Id. at pp. 2132-2133; italics omitted.)
“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not ‘uphold every modern law that remotely resembles a historical analogue,’ because doing so ‘risk[s] endorsing outliers that our ancestors would never have accepted.’ [Citation.] On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” (Bruen, supra, 142 S.Ct. at p. 2133.)
Applying this test, the Supreme Court held New York‘s “proper cause” requirement to be unconstitutional. After finding that the Second Amendment guaranteed a general right to public carry, and after performing an extensive historical analysis, the court stated: “[W]e conclude that respondents [New York] have not met their burden to
B. “Good cause” provision
The Bruen court made clear that California‘s similar “good cause” requirement in section 26150 was unconstitutional. (Bruen, supra, 142 S.Ct. at p. 2124 & fn. 2.) On June 24, 2022, the day after Bruen was released, the California Attorney General issued a legal alert recognizing that the good cause requirement in sections 26150 and 26155 was no longer constitutional. (Legal Alert OAG-2022-02 (ca.gov) (https://perma.cc/F2MJ SXZ2) [accessed Nov. 13, 2023].) The alert instructed local officials not to require proof of good cause for issuing a public-carry license effective immediately. (Ibid.) Officials were directed to continue to apply the other licensing requirements, including proof of “good moral character.” (Ibid.)
Because the good cause requirement of section 26150 is unconstitutional, we must determine whether that requirement can constitutionally be severed from the remainder of the statute. In the absence of express language confirming or prohibiting severability, such as the case here, an unconstitutional statute remains effective to the extent its invalid
Grammatical separability “depends on whether the invalid parts ‘can be removed as a whole without affecting the wording’ or coherence of what remains.” (Matosantos, supra, 53 Cal.4th at p. 271.) Functional separability “depends on whether ‘the remainder of the statute ” ‘is complete in itself . . . .’ ” ’ ” (Ibid.) Volitional separability “depends on whether the remainder ’ “would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute.” ’ ” (Ibid.)
Defendants contended at the trial court that the offending portions of section 26150 could not be severed. They asserted Bruen rendered unconstitutional the “good cause” provision, the “good moral character” provision, and the “may issue” language allegedly vesting unbridled discretion in the licensing authorities. Severing those three provisions, they argued, left a statute that contained no restriction on the executive branch and did not make grammatical sense. We agree with the People and the holding in In re D.L., supra, 93 Cal.App.5th at pages 163-165, that the good cause provision is severable. The provision is grammatically separable. It is contained in a discrete subdivision, subdivision (a)(2) of section 26150. Excising the subdivision does not impair the wording or coherence of the remaining provisions in subdivision (a). (Id. at p. 163.)
The good cause provision is functionally separable. The remaining provisions are complete in themselves and can be applied independently. They require an applicant to be of good moral character, to reside or work within the city or county where the license is being issued, and to have completed a firearm safety course. (