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Filed 1/23/24 P. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Appellant,

v.

JOSIAH DAVIS et al.,

Defendants and Respondents.

C097319

(Super. Ct. No. 21FE012297)

The People charged defendants Josiah Davis and Demetrius Perry with carrying 

a firearm concealed in a vehicle (Pen. Code, § 25400, subd. (a)(1))1 and carrying a loaded 

firearm while in a public place (§ 25850, subd. (a)). The trial court, however, sustained 

defendants’ demurrers to the information. Although there was no assertion that either 

defendant had applied for a concealed-carry license, the trial court concluded that 

because having a concealed-carry license would be a defense to the charged crimes, and 

California’s concealed-carry licensing statutes at that time included a requirement that the 

applicant show good cause to obtain a license in violation of the Second Amendment 

right to keep and bear arms, it was appropriate in this case to dismiss the firearm-carrying

charges. The People appeal.

1 Undesignated statutory references are to the Penal Code.
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We conclude the trial court erred. The prohibition on carrying a concealed 

weapon under section 25400 does not violate the Second Amendment regardless 

of whether the licensing scheme was unconstitutional during the relevant time period. 

(People v. Miller (2023) 94 Cal.App.5th 935 (Miller).) And the crime of carrying a 

loaded firearm in public under section 25850 does not violate the Second Amendment 

because the unconstitutionality during the relevant time period of discrete licensing 

requirements does not render section 25850 facially unconstitutional. (People v. 

Mosqueda (2023) 97 Cal.App.5th 399, 403, 413-414 (Mosqueda).)

We will reverse the judgment and remand the matter to the trial court with 

directions to overrule defendants’ demurrers to the information.

BACKGROUND

Section 25400, subdivision (a)(1) provides that a person is guilty of carrying a 

concealed weapon if the person “[c]arries concealed within any vehicle that is under the 

person’s control or direction any pistol, revolver, or other firearm capable of being 

concealed upon the person.” Section 25400 does not apply if the person has a concealedcarry license. (§ 25655.)

Section 25850, subdivision (a) provides: “A person is guilty of carrying a loaded 

firearm when the person carries a loaded firearm on the person or in a vehicle while in 

any public place or on any public street in an incorporated city, city and county, or in any 

public place or on any public street in a prohibited area of an unincorporated area of a 

county or city and county.” Again, section 25850 does not apply if the person has a 

concealed-carry license. (§ 26010.)

Former section 26150, one of the concealed-carry licensing statutes, provided: 

“When a person applies for a license to carry a pistol, revolver, or other firearm 

capable of being concealed upon the person, the sheriff of a county may issue a license 

to that person upon proof of all of the following:

“(1) The applicant is of good moral character.
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“(2) Good cause exists for issuance of the license.

“(3) The applicant is a resident of the county or a city within the county, or the 

applicant’s principal place of employment or business is in the county or a city within the 

county and the applicant spends a substantial period of time in that place of employment 

or business.

“(4) The applicant has completed a course of training as described in 

Section 26165.” (Stats. 2015, ch. 785, § 2 [former § 26150, subd. (a)].)2

In New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1

[213 L.Ed.2d 387] (Bruen), the United States Supreme Court held that the New York 

concealed-carry licensing scheme violated the Second Amendment because it provided 

that the state may issue a license only if the applicant shows “proper cause” for obtaining 

a license. (Id. at pp. 11, 70-71.) The “proper cause” requirement was interpreted by New 

York courts to require the applicant to demonstrate a special need for self-protection, 

such as by presenting evidence of threats, attacks, or other dangers. (Id. at pp. 12-13.) 

The United States Supreme Court struck down the New York licensing law, concluding

the state cannot prevent law-abiding citizens with the ordinary need for self-defense from 

keeping and bearing arms. (Id. at pp. 70-71.)

2 Former section 26155 similarly provided that “the chief or other head of a municipal 

police department of any city or city and county may issue a license” using the same 

criteria as those found in former section 26150. We will cite former section 26150 in this 

opinion, with the understanding that the reasoning also applies to former section 26155.

The provisions of former sections 26150 and 26155 are relevant here. Effective 

January 1, 2024, former section 26150, subdivision (a) was amended to replace “the 

sheriff of a county may issue” with “the sheriff of a county shall issue” and to eliminate 

the requirements that the applicant be of good moral character and that good cause exists 

for issuance of the license. (§ 26150; Stats. 2015, ch. 785, § 2.) Similar changes were 

made to former section 26155. (§ 26155; Stats. 2010, ch. 711, § 6.) 
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Here, defendants demurred to the information charging them with violation of 

sections 25400, subdivision (a)(1) and 25850, subdivision (a). Although there is no 

evidence or allegation that either defendant applied for, and was denied, a concealedcarry license, they asserted in the trial court that California’s licensing law during the 

relevant time period (former § 26150) was invalid under Bruen because, like the New 

York licensing law, it provided that a California sheriff may issue a concealed-carry 

license only on a showing of good cause to obtain the license. They argued that, because 

California’s licensing law was unconstitutional and having a license would have been a 

defense to prosecution for the firearm-carrying charges in this case, those charges had to 

be dismissed. The trial court agreed and dismissed the information because, in the trial 

court’s words, “Bruen invalidated the only legal means by which the vast majority of 

Californians could exercise the right to public carry. Without a constitutional avenue to 

public carry, sections 25400 and 25850 become unconstitutional due to their total ban on 

public carry.”

DISCUSSION

Recent California Court of Appeal cases have rejected defendants’ arguments 

concerning the constitutionality of sections 25400 and 25850.

I

We begin with the validity of section 25400. In Miller, this court rejected the 

contention that a constitutional deficiency in the licensing statutes required the courts 

to dismiss firearm possession charges if having a license made the possession statute 

inapplicable. This court explained that the defendant “was charged with violating 

California’s prohibition against concealed carry. (§ 25400.) She was not charged with 

failing to obtain a license per se, though obtaining one would have exempted her from the 

reach of the statute under which she was charged. (§ 25655.) Her arguments are based 

on the flawed premise that section 25400 is unconstitutional without a valid licensing 

scheme. In this case, we need not resolve [the defendant’s] questions regarding the 
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constitutionality of California’s firearm licensing statutes because, even if we were to 

conclude the licensing statutes are invalid, this would not render a charge under 

section 25400 unconstitutional as well.” (Miller, supra, 94 Cal.App.5th at p. 943.) 

This court continued: “The constitutionality of California’s concealed carry prohibition 

is not dependent upon the constitutionality of its licensing statutes because, while a 

license qualifies a holder for an exemption from the concealed carry provisions, the 

availability of this exemption is not constitutionally necessary. [Citations.]” (Id. at 

p. 945.) This court reversed the trial court’s dismissal of the section 25400 charge 

against her. (Miller, at p. 946.)

As this court did in Miller, we conclude here that the validity of the section 25400 

concealed-carry prohibition is not dependent on the constitutionality of the firearm 

licensing statutes. While the concealed-carry prohibition does not apply if the carrier has 

a valid license (§§ 25655, 26010), such an exception to the enforcement of the concealedcarry prohibition is not constitutionally necessary. (Miller, supra, 94 Cal.App.5th at 

p. 945.)

II

We next turn to the validity of section 25850. In their demurrers, and again in this 

appeal, defendants have asserted that section 25850 is facially unconstitutional because

the licensing scheme during the relevant time period had (A) a good cause requirement

and (B) a good character requirement and because (C) it provided that a sheriff “may 

issue” a license.

A

We begin with the claim that section 25850 is facially unconstitutional because the 

licensing scheme during the relevant time period had a good cause requirement.

The defendants in Mosqueda, supra, 97 Cal.App.5th 399, raised a facial 

constitutional challenge against section 25850 based on Bruen’s invalidation of the good 

cause requirement in a licensing statute. (Mosqueda, at pp. 401-403.) A panel of this 
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court held that under Bruen, the good cause requirement in California’s licensing 

statutes was unconstitutional, but the requirement could constitutionally be severed from 

the remainder of the licensing statutes. (Id. at pp. 408-410.) Mosqueda held that the 

section 25850 charge did not violate the defendants’ Second Amendment rights because, 

with the unconstitutional provisions severed, the licensing statutes were valid and 

provided “a valid means for citizens to exercise their right under Bruen to possess a 

handgun in public for self-defense . . . .” (Mosqueda, at p. 414.) 

The trial court in the instant case sustained the demurrer based on its 

understanding that Bruen invalidated the only legal means by which most Californians 

could exercise the right to public carry. But the challenge based on the former good 

cause requirement fails because any good-cause deficiency during the relevant time 

period is severable and does not invalidate the remainder of the licensing statutes. 

(Mosqueda, supra, 97 Cal.App.5th at pp. 408-410, 413-414.)

B

Defendants further assert that the licensing scheme during the relevant time period 

was invalid because it included a requirement of good moral character. 

Former section 26150 required proof that the applicant was of good moral 

character, in addition to other elements, for the issuance of a concealed-carry license. 

(Mosqueda, supra, 97 Cal.App.5th at p. 402.) Recognizing that Bruen did not address an 

element comparable to California’s good moral character requirement but assuming for 

the sake of argument that the good moral character provision violated the Second 

Amendment, Mosqueda held that the good moral character provision was severable from 

the remainder of the licensing statutes, and because of that, the section 25850 charge did 

not violate the defendants’ Second Amendment rights. (Mosqueda, at pp. 410-411, 413-

414.) We similarly reject defendants’ challenge to the section 25850 charge based on the 

former good moral character requirement in the licensing statutes.
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C

Defendants also contend the use of the phrase “may issue” in the licensing statute

during the relevant time period, former section 26150, rendered the licensing scheme 

unconstitutional under Bruen because it gave the sheriff discretion to deny the license 

application even if the objective criteria, such as completing a firearms course, for 

example, were met. Former section 26150, subdivision (a) provided that “the sheriff of 

a county may issue a license to that person upon proof of all of the [requirements].” 

(Stats. 2015, ch. 785, § 2, italics added.) Indeed, Bruen characterized New York and 

California as “may issue” states because those states unconstitutionally imposed good 

cause requirements on the issuance of a license. The high court further approved the use 

of objective requirements for a license in so-called “shall issue” states that do not have 

good cause requirements. The distinction between “may issue” and “shall issue” states 

was not based on the use of language indicating the licensing entity “may issue” a 

license; it was based on whether the state required a showing of good cause.

The court in Bruen explained: “New York is not alone in requiring a permit to 

carry a handgun in public. But the vast majority of States -- 43 by our count -- are ‘shall 

issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever 

applicants satisfy certain threshold requirements, without granting licensing officials 

discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, 

only six States and the District of Columbia have ‘may issue’ licensing laws, under which 

authorities have discretion to deny concealed-carry licenses even when the applicant 

satisfies the statutory criteria, usually because the applicant has not demonstrated cause 

or suitability for the relevant license. Aside from New York, then, only California, the 

District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues 

to the ‘proper cause’ standard.” (Bruen, supra, 597 U.S. at pp. 13-14, fns. omitted, italics 

added.)
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It was the official’s discretion to deny a license based on a perceived lack of need 

or suitability that characterizes a “may issue” jurisdiction in Bruen. Indeed, in a footnote 

associated with the text just quoted, Bruen characterized Delaware as a “shall issue” 

jurisdiction even though the statute includes “may” in the authorization to issue a license. 

(Bruen, supra, 597 U.S. at p. 13, fn. 1.) In Delaware, a person “may be licensed” to carry 

a concealed weapon if the criteria are met. (Del. Code Ann., tit. 11, §1441 (2022).) 

The description of California as a “may issue” state in Bruen was based on the 

good cause requirement, not the language of former section 26150 allowing the sheriff 

to decline to issue a license even if the requirements were met. Defendants have not 

established that the “may issue” language of former section 26150 was facially

unconstitutional. (Mosqueda, supra, 97 Cal.App.5th at pp. 411-414.)

Accordingly, defendants’ facial challenge to the constitutionality of section 25850, 

based on the validity of the licensing scheme, is without merit.

DISPOSITION

The judgment is reversed and remanded with directions to overrule defendants’ 

demurrers.

 /S/

MAURO, Acting P. J.

We concur:

 /S/

RENNER, J.

 /S/

WISEMAN, J.*

*

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.