Filed 4/2/15 City of San Jose v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

CITY OF SAN JOSE, Plaintiff and Respondent,

v. EDWARD V. RODRIGUEZ,
Defendant;
LORI RODRIGUEZ, Intervener and Appellant. H040317 (Santa Clara County Super. Ct . No. 1-13-CV241669)

I. INTRODUCTION The City of San Jose police officers w ho responded to a domestic disturbance call at the home of Edward V. Rodriguez determin ed that he was a danger to himself and others and had him transpor ted to Santa Clara Valley Me dical Center for 72-hour
treatment and evaluation under Welfar e and Institutions Code section 5150. 1 The police
officers also seized 12 firearms from the ho me pursuant to section 8102, subdivision (a), which requires confiscation of any firearms owned by or found in the possession or control of a person detained for an exam ination of his or her mental condition.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.2 The City of San Jose (C ity) subsequently filed a pe tition for disposition of the firearms in which the City re quested a court order allowing forfeiture of the confiscated firearms pursuant to section 8102, subdiv ision (c). Edward V. Rodriguez’s wife, appellant Lori Rodriguez, opposed the petition and sought return of the firearms to her. 2 After an evidentiary hearing, the trial court determined that return of the confiscated firearms to the Rodriguez home would be likel y to result in the endangerment of Edward or others, and gran ted City’s petition. On appeal, Lori contends that the tr ial court erred because the order granting City’s petition is not supported by substantial evidence of da nger and also violates her right to keep and bear arms under the Second Amendment to the United States Constitution. For the reasons stated below, we determine that the trial court’s order under section 8102, subdivision (a) is supported by subs tantial evidence. We also determine
that Lori has not shown that her Second Am endment rights were violated by the trial
court’s order.
II. FACTUAL AND PROC EDURAL BACKGROUND
A. City’s Petition for Disposition of the Firearms On February 22, 2013, City filed a petition for dispositi on of the firearms pursuant to section 8102, subdivision (c) that named Edwa rd as the respondent. City stated that the firearms that were the subject of the pe tition came into police custody on January 24, 2013, when police officers res ponding to a domestic disturbance call at the Rodriguez home determined that Edward was a danger to himself or others. Edward was then transported to a medical center on a 72-hour hold for medical treatment and a

2 Since Edward V. Rodriguez and appe llant Lori Rodriguez have the same surname, we will refer to th em by their first names for pur poses of clarity and meaning no disrespect.3 psychological evaluation pursuant to section 5150. After Edward was transported, police officers conducted a protective sweep and confiscated 12 firearms from the home. In its petition, City requested that the trial court make a finding under section 8102 as to whether return of the weapons would be likely to endanger Edward or others and, if the finding of danger was made, order that the petition be gr anted and the weapons forfeited. Alternatively, if no finding of danger was made, City requested that the San Jose Police Department retain custody of the weapons for no more than two years
unless Edward obtained a court order allowing their return.
B. Lori’s Response to City’s Petition Edward did not file a response to City’s petition for disposition of firearms. Lori filed a response in opposition to the petition in which she designated herself as Edward’s “co-respondent.” In her suppor ting declaration, Lori stated that she had been married to Edward for nearly 20 years; Edward was placed on a psychiatric hol d pursuant to section 5150 on January 24, 2013; Edwa rd was currently pr ohibited from owning, acquiring, or possessing firearms or ammuniti on; and the confiscate d firearms had been kept in a safe in their home and were community property.
Lori further declared that no firearms were involved in the event that triggered Edward’s January 24, 2013 ep isode; she had opened the gun safe for the police officers who took all of their firearms; and she ackn owledged that she had a legal duty to prevent Edward from obtaining access to any firearms or ammunition under her control while he remained a prohibited person. Additionally, Lori attached documents to her declaration that showed her ownership of a firearm safe and her April 2013 ch ange to the safe’s
combination. In her hearing brief, Lori argued that the trial court had “no powe r to interfere with [her] Second Amendment ‘right to keep and bear arms,’ ” since she was not prohibited from acquiring or possessing firear ms and had promised to take all steps required under California law to secure the firearms in a gun safe.4 On June 21, 2013, the parties filed a sti pulation and order sta ting that the parties agreed that “Lori Rodriguez has standing in this action in that she has at least a community property interest in the firearms at issu e in these proceedings.”
C. Evidentiary Hearing The following is a summary of the evidence presented at the August 9, 2013 evidentiary hearing on City’s petition. On January 24, 2013, Police Officer Steven Valentine a nd other City of San Jose police officers arrived at the Rodriguez home to investigate a domestic disturbance. They were responding to Lori’s 911 call regarding Ed ward’s behavior and her concern that he might be suffering from a mental illness. Polic e officers had previous ly responded to at
least two calls of a domestic disturbance at the Rodriguez home and were aware that
there were firearms in the home. Upon his arrival at the Rodriguez home on January 24, 2013 , Officer Valentine observed that Edward was pe rspiring heavily and had rapi d respiration. Officer
Valentine also observed that Lori was afraid of Edward. Edward claimed that he was affiliated with the CIA, was acting irra tionally, and had biza rre and aggressive
mannerisms. Officer Valentine belie ved that Edward was delusional.
When Officer Valentine as ked Edward if he wanted to hurt himself, Edward responded by attempting to break his own thumb. Based on his observations and Edward’s attempt to hurt himself, Officer Valentine determined that Edward, who weighed nearly 400 po unds, was a danger to himself and others. San Jose Fire Department personnel a nd medical personnel arrived to transport Edward to Santa Clara Valley Medical Center (VMC) for a 72-hour hold and psychological evaluation pursua nt to former section 5150. 3 After Edward was secured on

3 At the time of Edwards’s detention, fo rmer section 5150 provided in part: “When any person, as a result of mental disord er, is a danger to others, or to himself or (continued)5 the gurney, he continued to break the restra ints. Medical personnel requested that a police officer accompany them in the ambulance. Edward was then transported to VMC, where he was determined to be a danger to himself and others and admitted to the hospital pursuant to former section 5151 4 and section 5152. 5
Officer Valentine remained at the Rodriguez home after Edward was transported.
He advised Lori that that he would need to confiscate the weapons in the home pursuant
to section 8102. Lori unlock ed a gun safe by using the key she kept in her possession and
a combination lock. Police o fficers then removed 12 fire arms, including three revolvers, three shotguns, a handgun, a rifle, and four semi-automatic rifles. Police officers did not find any firearms outside the gun safe. The firearms had been purchased by Lori or Edward or acquired from he r family. Although one fire arm belonged to Lori, all
12 firearms were confiscated because Edward had access to them. In February 2013, City filed a petition fo r disposition of the firearms to which Lori filed a response in April 201 3. In May 2013, Lori re ceived notification from the

herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designat ed by the county, designated members of a mobile crisis team provided by Section 56 51.7, or other profe ssional person designated by the county may, upon probab le cause, take, or cause to be taken, the person into custody and place him or her in a facility de signated by the county and approved by the State Department of Social Services as a facility for 72-hour treatment and evaluation.” 4 At the time of Edward’s detention, former section 5151 provided in part: “If the facility for 72-hour treatment and evaluation admits the pers on, it may detain him or her for evaluation and treatment for a period not to exceed 72 hours. . . . Prior to admitting a person to the facility for 72-hour treatment and evaluation pursuant to Section 5150, the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appr opriateness of the involuntary detention.” 5 Section 5152, subdivision (a) provides in part: “Each person admitted to a facility for 72-hour treatment and evaluation under the provisions of this article shall receive an evaluation as soon as possible afte r he or she is admitted and shall receive whatever treatment and care his or her condition requires for the full period that he or she is held.”6 California Department of Justi ce Bureau of Firearms that sh e is eligible to both possess and purchase firearms. At the hearing, Lori testified that she has not committed a felony
and has not been detain ed under section 5150.
D. Trial Court Order In its order of September 30, 2013, the trial court granted City’s petition for disposition of weapons. The order also states : “The City agrees to hold th e weapons pending final disposition or re solution of this matter in accordance with its general practices.” During the hearing on the petition, the trial court prov ided the court’s reasoning for granting the petition. The co urt stated: “I mean the elepha nt in the room is [Edward] goes back and somehow he overpowers [Lori] or pressures her or something to open the
safe. I mean that’s a real concern I have. At the end of the day this is a public safety issue. The guns are right there. They’re low hanging fruit. Yeah, they’re behind the safe. But, you know, I don’ t know the dynamics of the re lationship. I know the police
have been out there. I know there is a history of instab ility. I’m real concerned about releasing these weapons back to home, even behind the safe, wh en he’s got . . . the ability to, you know, coerce [Lori] so mehow into opening that sa fe. That concerns me.” The trial court also stated: “[A]t the end of the day, is what my responsibility is, is public safety. And that’s what guides me. And I’m not saying I’m ignoring her Constitutional Rights or anybody else’s rights. . . . I have to determine whether it’s appropriate to release those guns given the facts in this particular case and the situation.” The court then ruled, “I’m not going to order the release of the guns to the respondent. I don’t think it’s appropriate under the circumstances.” The trial court’s order did not require fo rfeiture or destruction of the confiscated firearms. During the hearing, City’s attorney noted that ot her options were available for disposition of the firearms: “The City has pr oposed a few options. Either the guns be held at another location away from the home. They could al so be sold. The City is7 certainly interested or willing to enter into that type of stipulation to sell them through a third party gun dealer. Or they could be held in the house if they’re rendered inoperable.” As to Lori’s claim of a community prope rty interest in the confiscated firearms,
the trial court stated: “I think there are viable alternatives that need to be explored. This is the community possession of the respondent and whether it’s by sale or release to a separate place. I’m going to le t you folks work that out. So with respect to the request to release the guns back to [Lori], I’m going to deny that request.” Thereafter, Lori filed a notice of app eal from the September 30, 2013 order.
III. DISCUSSION On appeal, we understand Lori to challenge the trial c ourt’s order granting City’s petition for disposition of firear ms on two grounds, insuffic iency of the evidence and
violation of her Second Ame ndment right to keep and bear arms. We will begin our
evaluation of her claims with an overview of the statutory framework for the confiscation of firearms from a person who has been detained for examination of his or her mental condition and the disposition of confiscated firearms.
A. The Statutory Framework “Two firearm statutes come into pl ay when a person is detained under section 5150 as a danger to himself [or hers elf] or others. Sec tion 8103 will prohibit his [or her] possession of firear ms for a five-year period. [ 6 ] Section 8102 [ 7 ] authorizes

6 Section 8103, subdivision (f)(1) provides in part: “No person who has been (A) taken into custody as provided in Sec tion 5150 because that person is a danger to himself, herself, or to others, (B) assessed within the meaning of Section 5151, and (C) admitted to a designated facility within the meaning of Sections 5151 and 5152 because that person is a danger to himself, he rself, or others, shall own, possess, control, receive, or purchase, or attempt to own, posse ss, control, receive, or purchase any firearm for a period of five years after the person is released from the facility.” The person may request a hearing to lift the rest riction. (§ 8103, subd. (f)(3).)
7 Section 8102, subdivision (a) provides in part: “Whenever a person, who has been detained or apprehended for examination of his or her mental condition . . . is found (continued)8 confiscation of any weapons he [or she] already possesses.” ( People v. Keil (2008) 161 Cal.App.4th 34, 37 ( Keil ).) Section 8102 also authorizes “possible forfeiture of weapons belonging to persons detained for examination under section 5150 because of their mental condition. [Citations.]” ( City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1500 ( City of San Diego ).)
As stated in City of San Diego , “ ‘[s]ection 8102 directly safeguards public health and safety by allowing law en forcement officers to conf iscate any firearm in the possession or control of a pers on who is appropriately deta ined or apprehended for a mental examination. Keeping a firearm aw ay from a mentally unstable person is a reasonable exercise of the police power. It is not unreasonable to conclude there is a significant risk that a mentally unstable g un owner will harm himself [or herself] or others with the weapon.’ [Citation.]” ( City of San Diego , supra , 216 Cal.App.4th at p. 1500.) The statutory scheme also provides the pr ocedure for the return of the confiscated firearms to the person who was detained under section 5150. At the time of the August 2013 hearing on City’s petition for disposition of fi rearms, former section 8102, subdivision (b) (now § 8102, subd. (b)(2)) pr ovided in part: “Where the person is released, the professional person in charge of the facility, or his or her designee, shall notify the person of the procedure for the retu rn of any firearm or other deadly weapon which may have been confiscated.” If the law enforcement agen cy that confiscated the firearms does not make the firearms available for return upon release of the detained person, the person may request

to own, have in his or her possession or under his or her c ontrol, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.”9 a hearing on return of the firearms. (§ 8102, subds. (e), (f).) The law enforcement agency may also request a hearing: “Upon the release of a person as described in subdivision (b), the confiscati ng law enforcement agency sha ll have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to resu lt in endangering the person or others, and to send a notice advising the person of his or her ri ght to a hearing on th is issue.” (§ 8102, subd. (c).) “Section 8102 thus ‘places the onus upon law en forcement to initiate the forfeiture proceeding, and to b ear the burden of proof on the issue of the danger presented by return of the weapons.’ [Citations.]” ( City of San Diego , supra , 216 Cal.App.4th at p. 1500.) “If, after a hearing, the court determines that the return of the firearm or other deadly weapon would likely endanger the pers on or others, the law enforcement agency may destroy the firearm within 180 days from the date that the court makes that determination, unless the person contacts th e law enforcement agen cy to facilitate the
sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code.” (§ 8102, subd. (h).)
The standard of review for the trial c ourt’s order granting a petition for disposition
of firearms under section 8102 is substantial evidence. ( City of San Diego , supra , 216 Cal.App.4th at p. 1501.) “In determining wh ether a trial court’s ruling is supported by substantial evidence, the appella te court should view the whol e record in the light most favorable to the ruling, reso lving all evidentiary conflicts and drawing all reasonable inferences supporting the court’ s decision. [Citation.]” ( Ibid .) “We affirm if ‘substantial evidence supports the court’s determination that return of the firearms to appellant would be likely to result in endangering appella nt or other persons.’ [Citation.]” ( Keil , supra , 161 Cal.App.4th at p. 38.)10 B. Analysis
1. Substantial Evidence We understand Lori to argue on appeal that the trial c ourt’s order granting City’s petition for disposition of firear ms and declining to return the firearms to her is not supported by substantial eviden ce. According to Lori, the ev idence showed that she is not prohibited from owning or possessing firear ms and if the confiscated firearms were returned to her, she could s ecure them in a gun safe to prevent Edward from having
unauthorized access. Lori also offers to have the title to the firearms transferred to her. In addition, Lori points out th at City’s counsel conceded during the hearing that there is nothing to prevent her from buying more fi rearms and bringing them to the Rodriguez
home. In response, City re lies on the statement in City of San Diego that “ ‘[t]he court may properly consider whether the circumstan ces leading to the section 5150 detention might occur again and whether possession or control of those confiscated weapons in such circumstance would pose a risk of danger to appellant or to others.’ [Citation.]” ( City of San Diego , supra , 216 Cal.App.4th at p. 1502.) City asserts that the undisputed
evidence shows that the circum stances here included Edward ’s behavior when Officer Valentine detained him, as well as Edward’s size and the prior police responses to the Rodriguez home. City also asserts that return of the confiscated firearms to Lori would have “the practical effect of returning them to Edward,” who is prohibited from accessing
firearms. We begin by noting that section 8102 expressly provides the procedure for the return of firearms confiscated by a law enfo rcement agency only to the person who was
detained under section 5150. S ection 8102 is silent as to the return of the confiscated firearms to any other person. Accordingly, the only issue to be decided at a hearing under section 8102, subdivision (c ) is whether return of the firearms to the previously detained person “would be likely to result in e ndangering the person or others.” (§ 8102,11 subd, (c); see also id ., subd. (h).) On appeal from a trial court orde r denying return of confiscated firearms under section 8102, the reviewing court decides the narrow issue of whether substantial evidence supports the tria l court’s determination that return of the firearms to the person who was detained u nder section 5150 would be likely to result in endangering that person or other persons. ( Keil , supra , 161 Cal.App.4th at p. 38.) In this case, Edward did not oppose the City’s petition for disposition of the firearms. The parties filed a stipulation and order stating that the parties agreed that “Lori Rodriguez has standing in this action in that she has at least a community property
interest in the firearms at is sue in these proceedings.” Sinc e the parties stipulated that Lori has standing in this matter, we will cons ider whether the trial court’s order granting City’s petition is supported by substantial ev idence that return of the firearms to the Rodriguez home would be likely to result in endangering Edward or others. (§ 8102, subds. (c), (h).) Having reviewed the record in the light most favorable to the trial court’s order ( City of San Diego , supra , 216 Cal.App.4th at p. 1501), we agree with City that the trial court’s order is supported by substantial eviden ce. The evidence sh owed that there had been two prior calls of a domes tic disturbance at the Rodri guez home; Lori made the 911 call regarding Edward’s condition on the day of his detention; Lo ri appeared to be afraid of Edward; Edward’s behavior was bizarre and delusional; Edward had attempted to break his own thumb; Edward weighed 400 pounds and had broken free of the gurney restraints; and medical person nel had requested that a police officer accompany them in the ambulance transporting Edward to the hospital. VMC pers onnel then determined that Edward was a danger to himsel f and others and he was adm itted to the hospital pursuant to sections 5151 and 5152. Moreover, th e trial court was not convinced by Lori’s testimony that she could safely store the fi rearms and prevent Edward from having access to them. “ ‘A reviewing c ourt neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” ( People v. Albillar (2010) 51 Cal.4th 47, 60.)12 We therefore conclude that substantial evidence supports the trial court’s order granting City’s petition for disposition of firear ms under section 8102 on the ground that
return of the confiscated firearms to the Rodriguez home would be likely to result in endangering Edward or others.
2. Constitutional Claim Lori’s chief contention on appeal is that the trial court’s order granting City’s petition for disposition of firear ms violates her Second Am endment right to keep and bear arms for home protection. She explains that “[d]epriving an owner of her own guns deprives her of the value of the property and means of exercising the core right of selfdefense. [Citation.]” City urges that Lori ’s constitutional and comm unity property rights may be lawfully impacted by a lawful rest riction on her husband Edward’s property
interest in the confiscated firearms. At the outset, we note that Lori does not challenge the trial court’s order as violating Edward’s Second Amendment right s. Constitutional challenges to the trial
court’s refusal under section 8102 to return confiscated firearms to a person who was
detained due to his or her mental condition have been rejected. (See Rupf v. Yan (2000) 85 Cal.App.4th 411, 427-428; People v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 312.)
Lori’s constitutional claim involves onl y her own Second Am endment right to keep and bear arms. For several reasons, we determine that Lori has not shown that her Second Amendment rights were violated by th e trial court’s September 30, 2013 order granting City’s petition for disposition of firearms. First, Lori acknowledges in her opening brief that the trial court’s order does not bar her from acquiring new firearms, noting the trial court’s “uncontradicted finding . . . that Lori cannot be prohibited from acquiring ne w firearms.” Lori further acknowledges that under section 8101, she may not allow Ed ward access to any new firearms that she may acquire. Section 8101 provides: “(a) Any person who shall kn owingly supply, sell,13 give, or allow possession or co ntrol of a deadly weapon to any person described in
Section 8100 or 8103 shall be punishable by imprisonment pursu ant to subdivision (h) of Section 1170 of the Penal Code, or in a coun ty jail for a period of not exceeding one year, by a fine of not exceeding one thousand dolla rs ($1,000), or by both the fine and imprisonment. [¶] (b) Any person who sha ll knowingly supply, sell, give, or allow possession or control of a fire arm to any person described in Section 8100 or 8103 shall be punished by imprisonment pursuant to su bdivision (h) of Sectio n 1170 of the Penal Code for two, three, or four years.” Second, we understand Lori to argue th at she has a Second Amendment right to return of the particular firearms that we re confiscated under section 8102 for home protection. However, Lori has not provided any legal authority for the proposition that the spouse of a person whose firearms were confiscated under sec tion 8102 has a Second Amendment right to the return of those confis cated firearms for home protection. In her briefing, she generally argues that the Un ited States Supreme Court expanded Second Amendment rights in District of Columbia v. Heller (2008) 554 U.S. 570 ( Heller ) and McDonald v. City of Chicago (2010) 561 U.S. 742 ( McDonald ). However, the Supreme Court decisions in Heller and McDonald did not state that the Second Amendment right to keep and bear arms extends to keepi ng and bearing either any particular firearms or fir earms that have been confiscated from a mentally ill person. Moreover, the Heller and McDonald decisions may be read to the contrary.
The McDonald court reiterated that “[i]n Heller, we held that the Second Amendment protects the right to possess a han dgun in the home for the purpose of selfdefense.” ( McDonald , supra , 561 U.S. 742, 791.) However, the court also stated: “It is important to keep in mind that Heller while striking down a la w that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and ca rry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ [Citation. ] We made it clear in Heller that our holding did not cast14 doubt on such longstan ding regulatory measures as ‘p rohibitions on the possession of firearms by felons and the mental ly ill,’ . . . . [Citation.]” ( McDonald , supra , 561 U.S. at p. 786, italics added.) Third, we note that the trial court’s orde r does not actually require forfeiture or
destruction of the confiscated firearms. Both the trial court and City’s attorney suggested there were other viable options for disposition of the firearms, such as sale or storage
outside the home. Finally, we consider whether the provisions of Penal Code section 33850 et seq. impact Lori’s Second Amendment claim. Lori has acknowledged that Penal Code section 33850 provides a procedure for the retu rn of firearms in po lice custody to persons who claim ownership of the firearms. Under Penal Code section 33850, a “pers on who claims title to any firearm” in law enforcement custody may seek the return of that firearm. (Pen. Code, § 33850, subd. (a).) 8 The person seeking return of any fi rearms must file an application for a
Penal Code section 33865 notifi cation that specifies the make and model of the firearms that are being sought and provides detailed in formation about any handguns. (Pen. Code, §§ 33850, 33865, subd. (c)(3).) The firearms cannot be returned by a court or law enforcement agency un less the person seeking them obtains a Penal Code section 33865 notification that the person is eligible to possess a firearm and “the firearm has been
recorded in the Automated Fir earms System in the name of the individual who seeks its return.” (Pen. Code, § 33855, subd. (b).)

8 Penal Code section 33850, subdivision (a) provides in part: “Any person who claims title to any firearm that is in the custody or control of a court or law enforcement agency and who wishes to have the firear m returned shall make application for a determination by the Department of Justice as to whether the appli cant is eligible to possess a firearm.”15 After oral argument, we asked the par ties to provide supplemental briefing with respect to the impact of Penal Code secti on 33850 et seq. on Lo ri’s Second Amendment claim, by responding to the following questions : (1) “The record on appeal includes a copy of a May 8, 2013 Department of Justi ce Bureau of Fireams no tice stating that Lori Rodriguez is ‘eligible to both possess and purchase firearms as of the date the [personal firearms eligibility] check was completed.’ What evidence in the reco rd, if any, shows that Rodriguez either has or has not sought return of the confiscated firearms under the procedure provided by Penal Code section 33850 et seq?”; (2) “Assuming that Rodriguez has not sought return of the confiscated fire arms under Penal Code section 33850 et seq., what is the impact on her claim that the trial court’s order of September 30, 2013, violates her rights under the Second Amendment?”; a nd (3) “Assuming that Rodriguez has sought
return of the confiscated firearms under Pena l Code section 33850 et seq., what is the impact on her claim that the trial court’s orde r of September 30, 2013, violates her rights
under the Second Amendment?” In their supplemental briefing, the par ties agree that the re cord does not indicate that Lori has sought return of the confiscat ed firearms under the procedure provided by
Penal Code section 33850 et se q. We understand Lori to contend that her failure to utilize the firearms return proc edure provided by Penal Code section 33850 et seq. has no impact on her Second Amendment claim, for three reasons. Fi rst, Lori asserts that she properly sought return of th e confiscated firearms by inte rvening in City’s petition for disposition of firearms under s ection 8102. Second, Lori ma intains that she may raise a constitutional claim without exhausting th e administrative reme dy provided by Penal Code section 33850 et seq. Finally, Lori app ears to argue that the trial court proceedings on City’s section 8102 petition precluded her from seeking re turn of the confiscated
firearms under Penal Code section 33850. City responds that whethe r or not Lori has sought return of the confiscated
firearms under Penal Code section 33850 et seq. has no impact on her claim that the16 trial court’s September 30, 2013 order viol ates her Second Amendment rights. City notes that prior to amendmen t in 2013, section 8102 was silent as to Penal Code section 33850 et seq., 9 and emphasizes its position that the trial court’s order is constitutional because substantial evidence suppor ts the trial court’s finding that return of
the confiscated firearms would like ly endanger Edward and others. The parties’ supplemental br iefing confirms that Lori has not sought return of the confiscated firearms under the procedure provi ded by Penal Code se ction 33850 et seq., although the firearms remain in the custody of law enforc ement and Lori has obtained notification from the California Department of Justice Bureau of Fi rearms that she is eligible to both possess and purchase firearms . Lori has not provid ed any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person
who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the

9 As amended in 2013, section 8102, s ubdivision (b) provides: “(1) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for exam ination of his or her mental condition, the peace officer or law enforcement agency shall issu e a receipt describing the dead ly weapon or any firearm and listing any serial number or other identificati on on the firearm and shall notify the person of the procedure for the return, sale, transfer, or destruction of any fi rearm or other deadly weapon which has been confiscated. A peace officer or law enforc ement agency that provides the receipt and notification descri bed in Section 33800 of the Penal Code satisfies the receipt and notice requirements . [¶] (2) If the person is released, the professional person in charge of the facility, or his or her de signee, shall notify the person of the procedure for the return of any fire arm or other deadly weapon which may have been confiscated. [¶] (3) Health facility personnel sha ll notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the require d notice to the person re garding the procedure to obtain return of any confis cated firearm. [¶] (4) For pur poses of this subdivision, the procedure for the return, sale, or transfer of confiscated firearms includes the procedures described in this section and the procedures described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.” (Stats. 2013, ch. 747, § 2.)17 procedure provided by section 33850 et seq. for return of firearms in the possession of
law enforcement remain s available to Lori.
We therefore determine that Lori has failed to show that the trial court’s September 30, 2013 order violates the Second Amendment by precluding her from keeping firearms for home protection. In the absence of any evidence that Lori’s Second Amendment right to keep and bear arms was actually vi olated by the trial court’s September 30, 2013 order granting City’s petition for disposition of firearms under section 8102, we conclude that her Second Amendment cl aim lacks merit. Having also determined that the orde r may be affirmed under section 8102 because the order is supporte d by substantial evidence that return of the confiscated firearms to the Rodriguez home would be likely to result in endangering Edward or others, we will a ffirm the order.
IV. DISPOSITION The September 30, 2013 order is affirmed._____________ _______________ _______________ BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

_____________ _____________ MIHARA, J.

_____________ _____________ GROVER, J.