Filed 7/16/24 P. v. Brigham CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE

,

Plaintiff and Respondent

,

v.

TYREECE BRIGHAM

,

Defendant and Appellant

. B 3 32960

(Los Angeles County Super. Ct. No. BA508917 )

APPEAL from a judgment of the Superior Court of
Los Angeles County

, Victoria B. Wilson , Judge. Affirmed

. Frank Bazadier for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi , Deputy Attorney s General

, for Plaintiff and Responden t.

____ _______ _____________2 INTRODUCTION

Tyreece Brigham , represented by counsel, appeals from a ju dgment after plead ing no contest to having a concealed firearm
in a vehicle in violation of Penal Code section 25400

, subdivision ( a ) (1)

. 1 Brigham challenges his conviction by asserting that section 25400 is unconsti tu tional in light of the United States Supreme Court ’ s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. 1 ( Bruen ) and the high court’s potential grant of a writ of certiorari in Nichols v.
Newsom (9th Cir. Sept. 12, 2022 , No. 14

- 55873 ) 2022 WL 4295404

. 2 Brigham ’s opening brief , however, fails to present any argument explaining how or why section 25400 violates the Second Amendment

. Give n the summary nature of his argument , we conclude Brigham has forfeited his constitutional challenge

. ( See People v. Caro (2019) 7 Cal.5th 463, 512

. ) W e affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately midnight on May 16, 2022, police officers conducted a traffic stop when they observed Brigham make unsafe lane changes and an illegal U

- turn. After Brigham consented to a search of the vehicle, t he officers recovered a

1 All undesignated statutory references are to the Penal Code.

2 T he high court denied review on January 8, 2024 in Nichols v. Newsom (2024) 144 S.Ct. 569, six days after Brigham filed his opening brief.3

nine

- millimeter sem i

- automatic handgun loaded with a high capacity magazine with 18 nine

- millimeter rounds in a bag
behind the driver’s seat. Brigham was charged with having a concealed firearm in a vehicle in violation of section 25400, subdivision ( a )( 1)

, and carrying a loaded handgun in violation of section 25850, subdivision (a). Brigham moved to dismiss the charges, relying

on Bruen, supra, 597 U.S. 1 in the same summary fashion as in his opening brief. The trial court denied the motion. Brigham
then pleaded no contest to having a concealed firearm in a vehicle
in violation of section 25400 and the trial court placed him on probation for two years. He timely appealed after obtain ing a certificate of probable cause

. ( See § 1237.5 ; Cal. Rules of Court

, rule 8.304(b)(1)

. )

DISCUSSION

Brigham contends section 25400 is unconstitutional in light
of Bruen

. Bruen involved the State of New York’s denial of the plaintiffs’ license applications to carry handguns in public
because the applications failed to demonstrate “ ‘ proper cause

. ’ ” ( Bruen, supra, 597 U.S. at p. 1. ) To meet th is standard

, New
York courts had ruled that applicants had to demonstrate a special need for self

- protection distinguishable from that of the general com munity

. ( See i d. at p. 13

. ) Bruen held the proper cause requirement to obtain a public

- carry permit violated the applicants ’ Second Amendment rights. ( See i d. at p. 8 .) After quoting parts of Bruen , Brigham’s entire argument is as follows: “A nd if the US S uprmes [sic] elect to grant cert. t o hear C harles N ichols, P etitioner v. Gavin N ewsom, G overnor of4

C alifornia, C alifornia maybe without any excuse or claims that only its former ‘ for cause requirement ’ for one to be issued a

c oncealed carry permit is unconstitutional leaving the remainder of its licensing scheme intact including the prohibition of non

felons to go to non

- sensitive locations bearing their firearms in public. ” ( C apitalization omitted

. ) Brigham presents no other argument on appeal.
The People contend that Brigham ’s argument was waived
because he failed to support his claim with sufficient argument

. 3 ( See People v. Hovarter ( 2008) 44 Cal.4th 983, 1029 ; People v. Stanley (1995) 10 Cal.4th 764, 793 .) The People further argue
that Brigham based his claim of error on Nichols v. Newsom, in
which he anticipated the high court would grant review

, but as previously noted

, the court denied review of that case

. The People also argue that Brigham has no standing to challenge California’s firearm licensing laws because he never sought a license to own or carry a firearm. Additionally, the People cite post

- Bruen case s holding that section 25400 remains valid and
th at Bruen had no effect on it. ( See People v. Mosqueda (2023)
97 Cal.App.5th 399, 403; People v. Miller (2023) 94 Cal.App.5th 935, 939 ( Miller ) ; In re T.F.

- G. (2023) 94 Cal.App.5th 893, 908;
In re D.L . (2023) 93 Cal.App.5th 144, 148. ) Pre

- Bruen cases ha ve also upheld the statutory provision against constitutional

3 Although the People argu e Brigham waived this argument, we conclude Brigham forfeited the argument. “ Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘ intentional relinquishment or abandonment of a known right. ’ ” ( United States v. Olano ( 1993) 507 U.S. 725, 733 ; accord

, Cowan v. Superior C

ourt (1996) 14 Cal.4th 367, 371

. )5

challenges. (See, e.g., People v. Flores (2008) 169 Cal.App.4th 568, 574

- 577 ; People v. Yarbrough (2008) 169 Cal.App.4th 303,
311

- 314

. ) After reviewing the opening brief, w e agree Brigham has forfeited his argument that section 25400 is unconstitutional

. Brigham’s opening brief does not contain any reasoned argument or support for his position . And even after the People raised this deficiency in the respondent ’ s brief, Brigham did not file a reply. “[O] ur review is limited to those issues that have been adequately raised and supported in the appellant ’ s brief ” and “it is not the appellate court’s role to construct theories or arguments” for an appellant. ( Lee v. Kim (2019) 41 Cal.App.5th 705 , 721; Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief must “support each point by argument and, if possible, by citation of authority”]

, and
rule 8.360(a) [ briefs in criminal appeals must comply with rule
8.204 ] .)
As noted

, several courts of appeal have considered and rejected similar challenges to the constitutionality of
section 25400 and California’s firearm licensing scheme after
Bruen

. All of these opinions were published before Brigham filed his opening brief

, but h e failed to address o r distinguish any of
them. Brigham instead speculate d that California ’s firearm licensing laws may be constitutionally infirm if the United States Supreme Court had granted certiorari in Nichols

. But he fails to explain the ruling in Nichols and how a grant of certiorari in that

case would render California’s firearm licensing laws
unconstitutional. In all event s , as noted, the high court denied
review in that case

. 4

4 In light of our determination that Brigham forfeited his argument on the constitutionality of the statutory provision at6 DIS POSITION

The judgment is affirmed.

MARTINEZ

, P. J.

We concur:

F EUER

, J.

STONE, J.

issue, we need not decide whether and how Bruen impacts section 25400, nor do we reach the People’s argument that Brigham l acks standing to bring such a challenge

.