Filed 5/30/13 P. v. Burke CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

STEVEN JOHN BURKE, 

 Defendant and Appellant. 

 G047061 

 (Consol. with G047062) 

 (Super. Ct. Nos. 11NF3234 & 

 11NF2951) 

 O P I N I O N 

 

 Appeal from judgments of the Superior Court of Orange County, Craig E. 

Robison, Judge. Affirmed. 

 Khouri Law Firm and Michael J. Khouri for Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and 

Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 Defendant Steven John Burke pleaded guilty to one count of unlawful 

possession of a firearm (Pen. Code, § 12021, subd. (c)(1)) (case No. 11NF2951) and two 

counts of unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (case 

No. 11NF3234).

1

 On appeal he challenges the constitutionality of section 12021, 

subdivision (c)(1) (section 12021(c)(1)), which prohibits certain misdemeanants from 

possessing firearms, contending the statute violates his Second Amendment right to bear 

arms and Fourteenth Amendment right to equal protection.

2

 We consolidated the cases 

on appeal and affirm the judgments. 

FACTS 

 Defendant offered the following facts as the basis for his guilty pleas 

underlying the judgments in these consolidated appeals. On February 10, 2011, he 

unlawfully possessed a firearm. On February 10 and October 5 of 2011, he unlawfully 

possessed ammunition. On those dates, he was prohibited from possessing firearms or 

 

1

 On the People’s motion, a third count of unlawful possession of 

ammunition was dismissed. Defendant obtained certificates of probable cause to appeal 

from the judgments based on his guilty pleas. 

 All statutory references are to the Penal Code. Effective January 1, 2012, 

the Legislature repealed sections 12021 and 12316. (Stats. 2010, ch. 711, § 4.) Section 

29805 continues former section 12021, subd. (c)(1) without substantive change. Section 

30305, subdivision (a) continues former section 12316, subdivision (b)(1) without 

substantive change. For convenience of reference to the record, we will refer to the 

former Penal Code sections under which these cases were filed. 

2

 Without any supporting argument or citation to legal authority regarding 

section 12316, subdivision (b)(1), which prohibits possession of ammunition by persons 

subject to a section 12021 firearm prohibition, defendant appears to challenge its 

constitutionality under the Second Amendment. This court does not address unsupported 

contentions. (People v. Jones (1998) 17 Cal.4th 279, 304.) 
3

ammunition due to his August 28, 2003 conviction for misdemeanor assault under section 

240. 

DISCUSSION 

 Defendant challenges the constitutionality of section 12021(c)(1) under the 

Second and Fourteenth Amendments of the United States Constitution. Section 

12021(c)(1) prohibits a person convicted of a qualifying misdemeanor (including assault 

under § 240) from owning or possessing a firearm within 10 years of the misdemeanor 

conviction. Assault under section 240 is “an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.” 

 We first address defendant’s Second Amendment challenge to the statute. 

Relying on District of Columbia v. Heller (2010) 554 U.S. 570 (Heller) and U.S. v. 

Chester (4th Cir. 2010) 628 F.3d 673 (Chester), defendant urges us to apply Chester’s

standard of intermediate scrutiny to determine whether section 12021(c)(1) violates his 

Second Amendment right to bear arms. 

 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 Heller, the Supreme Court held that the Second Amendment 

guarantees “the individual right to possess and carry weapons in case of confrontation.” 

(Heller, supra, 554 U.S. at p. 592.) Heller cautioned, however, that “the right secured by 

the Second Amendment is not unlimited.” (Id. at p. 626.) Indeed, Heller identified (and 

left intact) certain historically permissible restrictions on the right to bear arms: 

“Although we do not undertake an exhaustive historical analysis today of the full scope 

of the Second Amendment, nothing in our 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 
4

government buildings, or laws imposing conditions and qualifications on the commercial 

sale of arms.” (Id. at pp. 626-627.) Heller further recognized existing prohibitions on 

carrying concealed weapons (id. at p. 626) or “‘dangerous and unusual weapons’” (id. at 

p. 627). Heller clarified that its list did “not purport to be exhaustive” and that it 

identified “these presumptively lawful regulatory measures only as examples.” (Id. at p. 

627, fn. 26.) 

Heller then turned to the District of Columbia law at issue there, which 

“totally ban[ned] handgun possession in the home[ and] also require[d] that any lawful 

firearm in the home be disassembled or bound by a trigger lock at all times, rendering it 

inoperable.” (Heller, supra, 554 U.S. at p. 628.) The Supreme Court held the law was 

unconstitutional. (Id. at pp. 628-629.) The high court explained that the Second 

Amendment protects a person’s right to possess a handgun in the home for self-defense 

and protection of family and property. (Heller, at p. 628.) The Supreme Court declared 

that the District of Columbia’s ban of handguns from the home failed constitutional 

muster under any standard, thus expressly leaving open the question of the applicable 

standard of scrutiny. (Id. at pp. 628-629, 634.) Heller did suggest, however, that rational 

basis scrutiny would be insufficient: “If all that was required to overcome the right to 

keep and bear arms was a rational basis, the Second Amendment would be redundant 

with the separate constitutional prohibitions on irrational laws, and would have no 

effect.” (Id. at p. 628, fn. 27.) 

 In Heller’s aftermath, the Court of Appeal in People v. Flores (2008) 169 

Cal.App.4th 568 (Flores) upheld section 12021(c)(1) against a Second Amendment 

challenge under facts similar to those before us. (Flores, at pp. 573, 577.) The 

defendant’s section 12021(c)(1) conviction was based on his prior misdemeanor assault 

conviction under “section 245, subdivision (a)(1), which prohibits ‘an assault upon the 

person of another . . . by any means of force likely to produce great bodily injury.’” 

(Flores, at p. 574). Flores observed that section 12021, subdivision (a)’s prohibition of 
5

felons from possessing firearms falls into one of Heller’s recognized permissible 

restrictions. (Flores, at p. 574.) As to misdemeanants, Flores reasoned: “If, as Heller

emphasizes, the Second Amendment permits the government to proscribe the possession 

of a firearm by any felon (including nonviolent offenders), we can see no principled 

argument that the government cannot also add certain misdemeanants, particularly those 

who have committed an assault by ‘means of force likely to produce great bodily injury.’ 

[Citation.] The public interest in a prohibition on firearms possession is at its apex in 

circumstances, as here, where a statute disarms persons who have proven unable to 

control violent criminal impulses.” (Id. at p. 575.) 

 Subsequently, People v. Delacy (2011)192 Cal.App.4th 1481 (Delacy) 

involved another Second Amendment challenge to section 12021(c)(1)’s prohibition on 

misdemeanants’ possession of firearms. (Delacy, at p. 1485.) The predicate 

misdemeanor in Delacy was battery under section 242 (Delacy, at p. 1485), which defines 

battery as “‘any willful and unlawful use of force or violence upon the person of 

another’” (Delacy, at p. 1492). The defendant urged the appellate court to apply strict 

scrutiny to strike down section 12021(c)(1). (Delacy, at p. 1488.)

3

 The appellate court 

found it unnecessary to apply any standard of scrutiny balancing the statute’s objectives 

against its means because, under Heller and Flores, section 12021(c)(1) is a 

presumptively lawful regulation (insofar as it prohibits “firearm possession by 

misdemeanants who have shown a propensity to commit violence against others”) and is 

therefore immune from means-end scrutiny. (Delacy, at p. 1492; see also U.S. v. 

Marzzarella (3d Cir. 2010) 614 F.3d 85, 91 [Heller’s recognized historic restrictions are 

presumptively lawful not because “they pass muster under any standard of scrutiny,” but, 

rather, because they “regulate conduct outside the scope of the Second Amendment” and 

“are exceptions to the right to bear arms”].) Delacy noted that appellate courts were 

 

3

 “When strict scrutiny applies, a law is constitutional only if it is ‘necessary 

to achieve a compelling state interest.’” (Id. at p. 1488, fn. 4.) 
6

“generally unanimous in rejecting the application of means-end scrutiny to statutes 

disqualifying felons and certain misdemeanants from weapons possession until an en 

banc decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614 

F.3d 638 (Skoien) and, more recently, . . . Chester[, supra,] 628 F.3d 673 . . . , which 

follows Skoien.” (Id. at p. 1490.) Delacy disagreed with Skoien’s application of 

intermediate scrutiny to determine the constitutionality of Heller’s presumptively valid 

restrictions. In Delacy’s view, “the Skoien approach gives too little weight to the 

‘presumptively lawful’ language of Heller.” (Delacy, at p. 1490.) 

 Here, defendant urges us to apply the intermediate scrutiny standard 

advocated by Chester, where the Fourth Circuit adopted “a two-part approach to Second 

Amendment claims.” (Chester, supra, 628 F.3d at p. 680.) The Chester approach asks 

whether the challenged law restricts conduct historically protected by the Second 

Amendment and, if so, whether (under the intermediate scrutiny standard) there is a 

reasonable fit between the law and a substantial government objective. (Chester, at pp. 

680, 683.) Chester concluded that (1) “the possession of a firearm in the home by a 

domestic violence misdemeanant” (id. at p. 680) was not necessarily excluded from 

Second Amendment protection, (2) therefore the defendant was “entitled to some 

measure of Second Amendment protection to keep and possess firearms in his home for 

self-defense” (id. at pp. 681-682), and (3) the government bore the burden of justifying 

the challenged law under the appropriate standard of scrutiny (id. at p. 682). Chester

reached this conclusion, however, only because the government there did not contend that 

the challenged law involved conduct unprotected by the Second Amendment and because 

of the lack of historical evidence on this issue in the record. (Chester, at p. 682.) 

 We agree with Flores and Delacy that gun possession by an assault or 

battery misdemeanant is not conduct historically protected by the Second Amendment. 

Accordingly, we hold that section 12021(c)(1)’s prohibition on gun possession by a 

person convicted of misdemeanor assault under section 240 (which requires “an unlawful 
7

attempt, coupled with a present ability, to commit a violent injury”) is a presumptively 

lawful restriction and immune from constitutional means-ends scrutiny. Furthermore, 

this case is distinguishable from Chester because the Attorney General argues here that 

defendant “committed a misdemeanor crime of violence” and under Flores and Delacy 

does not qualify for Second Amendment protection. 

 Defendant also challenges the constitutionality of section 12021(c)(1) on 

equal protection grounds under the Fourteenth Amendment of the United States 

Constitution. Focusing on voting rights, he argues that, although the Supreme Court has 

“upheld states’ right to disenfranchise ex-felons,” as to misdemeanants it has “held that 

the Fourteenth Amendment prohibited states from disenfranchising persons convicted of 

misdemeanors, even if the crimes involved moral turpitude.” For this proposition he 

relies on Hunter v. Underwood (1985) 471 U.S. 222, 223. Contrary to defendant’s 

representation, Hunter held that an Alabama law violated equal protection because its 

“original enactment was motivated by a desire to discriminate against blacks on account 

of race” and the law’s racially discriminatory effect was ongoing. (Id. at p. 233.) 

Furthermore, as stated by the Attorney General here, “[a]llowing a person who has a 

demonstrated inability to control his violent criminal impulses to possess a firearm raises 

concerns for public safety that are not present in allowing the same person to vote.” 
8

DISPOSITION 

 The judgment is affirmed. 

 IKOLA, J. 

WE CONCUR: 

RYLAARSDAM, ACTING P. J. 

THOMPSON, J.