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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assi stant Attorney Genera l, Melissa Mandel and Charles C. Ragland, Deputy Attorneys Ge neral, for Plaintiff and Respondent.
* * *2 Defendant Steven John Burke plea ded 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 ammuniti on (Pen. Code, § 12316, subd. (b)(1)) (case No. 11NF3234). 1 On appeal he challenges the constitutionality of section 12021, subdivision (c)(1) (section 1 2021(c)(1)), which pr ohibits certain misdemeanants from possessing firearms, contending the statute viol ates his Second Amendm ent right to bear
arms and Fourteenth Amendmen t right to equal protection. 2 We consolidated the cases on appeal and affirm the judgments.

FACTS

Defendant offered the following facts as the ba sis for his guilty pleas underlying the judgments in these consolidat ed appeals. On Fe bruary 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 th ird 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 Effective January 1, 2012, the Legislature repealed sections 12021 and 12 316. (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, subdiv ision (b)(1) without substantive change. For convenience of refe rence to the record, we will refer to the former Penal Code sections unde r which these cases were filed.

2 Without any supporting argument or citation to legal authority regarding section 12316, subdivision (b )(1), which prohibits possessi on of ammunition by persons subject to a section 12021 firearm prohib ition, defendant appears to challenge its constitutionality under the Seco nd 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 convic tion for misdemeanor assault under section
240.

DISCUSSION

Defendant challenges the constitutionality of section 12021(c)(1) under the
Second and Fourteenth Amendments of th e United States Constitution. Section 12021(c)(1) prohibits a person convicted of a qualifying misd emeanor (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 vi olent injury on the person of another.”
We first address defenda nt’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 determ ine whether section 12021(c)(1) violates his Second Amendment right to bear arms.
The Second Amendmen t provides, “A well regulated Militia, being necessary to the security of a free State, th e right of the people to keep and bear Arms, shall not be infringed.” In Heller , the Supreme Court held th at 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 permissibl e restrictions on the right to bear arms: “Although we do not undertake an exhaustive hi storical analysis today of the full scope of the Second Amendment, not hing in our opinion should be taken to cast doubt on longstanding prohib itions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and4 government buildings, or laws imposing cond itions 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 pur port to be exhaustive” and that it identified “these presumptively lawful regu latory measures only as examples.” ( Id. at p. 627, fn. 26.)
Heller then turned to the Di strict of Columbia law at issue there, which “totally ban[ned] handgun possession in the hom e[ 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 posse ss a handgun in the home for self-defense and protection of fami ly 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 l eaving open the questio n 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 prohibitio ns 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 simila r 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 of5 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 Amendm ent permits the government to proscribe the possession of a firearm by any felon (including nonviole nt offenders), we can see no principled argument that the government cannot also add certain misdem eanants, particularly those who have committed an assault by ‘means of force likely to pr oduce great bodily injury.’ [Citation.] The public interest in a prohib ition on firearms possession is at its apex in circumstances, as here, where a statute di sarms 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 “regulat e conduct outside the scope of the Second Amendment” and “are exceptions to the ri ght 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 rej ecting the application of means-end scrutiny to statutes disqualifying felons and certain misdemea nants 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 dete rmine 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 Circ uit 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 conduc t historically protected by the Second Amendment and, if so, whether (under the in termediate 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 ne cessarily excluded from Second Amendment prot ection, (2) therefore the de fendant was “entitled to some
measure of Second Ame ndment protection to keep and po ssess 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 appr opriate standard of scrutiny ( id. at p. 682). Chester reached this conclusion, however, onl y because the government there did not contend that the challenged law in volved conduct unprotected by th e 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 historica lly protected by the Second Amendment. Accordingly, we hold that section 1 2021(c)(1)’s prohibiti on on gun possession by a person convicted of misdemeanor assault under section 240 (which requires “an unlawful7 attempt, coupled with a pres ent ability, to commit a violent injury”) is a presumptively
lawful restriction and immune from constituti onal 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 cons titutionality of section 12021(c)(1) on equal protection grounds under the Fourte enth Amendment of the United States Constitution. Focusing on voting rights, he argues that, although the Supreme Court has “upheld states’ right to disenfranchise ex-fel ons,” as to misdemeanants it has “held that the Fourteenth Amendment prohi bited states from disenfranchi sing persons convicted of misdemeanors, even if the cr imes involved mora l 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 viol ated equal protection because its “original enactment was motivated by a desire to discriminate against blacks on account of race” and the law’s racially discri minatory effect was ongoing. ( Id. at p. 233.) Furthermore, as stated by th e 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 pr esent in allowing the same person to vote.”8 DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.