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Filed 10/18/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA PAUL ALLEN,

Defendant and Appellant.

E079475

(Super.Ct.No. FVI21000240)

OPINION

APPEAL from the Superior Court of San Bernardino County. John P. Vander 

Feer, Judge. Affirmed in part, vacated in part, and remanded with directions.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman and 

Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts A.4 and B of the Discussion.
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Joshua Paul Allen appeals from his convictions for possessing a controlled 

substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) and 

possessing an unregistered and loaded firearm while in a vehicle (Pen. Code, § 25850, 

subds. (a), (c)(6); unlabeled statutory references are to the Penal Code). He argues that 

the laws violate the Second Amendment as interpreted by N.Y. State Rifle & Pistol Ass’n

v. Bruen (2022) 597 U.S. __ [142 S.Ct. 2111] (Bruen). We reject the constitutional 

challenges, and we publish our analysis concerning possession of a controlled substance 

while armed with a firearm to confirm that People v. Gonzalez (2022) 75 Cal.App.5th 

907, 912-916 (Gonzalez) remains good law. We nevertheless vacate Allen’s sentence 

and remand for resentencing because we agree with the parties that Allen’s sentence 

violates section 654.

BACKGROUND

One afternoon in January 2021, law enforcement conducted a traffic stop of the 

car that Allen was driving. When sheriff’s deputies approached the car, it was parked in 

a motel parking lot. Allen had a loaded firearm in the waistband of his pants. The gun 

was operable, and its magazine contained five bullets. Allen told one of the deputies that 

he had taken the gun from someone else within the past hour to prevent that person from 

using it to injure another person. At trial, Allen stipulated that he was not the firearm’s 

registered owner.

A deputy searched Allen’s car and found a box of nine-millimeter ammunition

containing 18 bullets, methamphetamine, a shotgun shell, and a glass pipe that appeared 
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to have been used to smoke methamphetamine. Allen admitted that the

methamphetamine belonged to him. Allen told the deputy that he had last used

methamphetamine one hour earlier.

A jury convicted Allen of one felony count of possessing a controlled substance 

while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1) and one 

felony count of “carrying a loaded handgun on one’s person or in a vehicle”

(capitalization omitted) (§ 25850, subd. (a) (§ 25850(a)); count 2). As to count 2, the jury 

found true the allegation that the firearm was not registered. (§ 25850, subd. (c)(6).)

The trial court sentenced Allen to two years in state prison for count 1 and 

imposed a concurrent sentence of 16 months for count 2. The court rejected defense 

counsel’s argument that the court should stay one of the sentences under section 654, 

reasoning: “I don’t believe [section] 654 applies because the elements are different, 

because it’s not like the elements are identical. It kind of seems—the difference is the 

methamphetamine being present in the one, and then just the firearm in the other, so it’s 

not just the firearm for the Count 1, it’s the firearm and the controlled substance, that’s 

why it’s not [section] 654.”

DISCUSSION

A. Constitutional Challenges

Allen challenges the facial validity of the laws prohibiting possession of controlled 

substances while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) and 

carrying a loaded and unregistered firearm in a vehicle (§ 25850, subds. (a), (c)(6)). He 
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argues that the laws are unconstitutional under the Second Amendment in light of Bruen, 

supra, 142 S.Ct. 2111. He contends that the United States has no historical tradition of

analogous prohibitions. As to possession of a controlled substance while armed, we 

conclude that the Second Amendment does not cover the challenged conduct. As to 

possession of an unregistered firearm in a vehicle, we conclude that Allen’s challenge 

fails because Bruen did not invalidate all firearm registration schemes, and Allen does not 

argue that California’s firearm registration regime is invalid. We accordingly need not 

address Allen’s arguments concerning the purported nonexistence of a tradition of

analogous laws.

1. Standard of Review

“In analyzing a facial challenge to the constitutionality of a statute, we consider 

‘only the text of the measure itself, not its application to the particular circumstances of 

an individual.’ [Citation.] ‘On a facial challenge, we will not invalidate a statute unless 

it “pose[s] a present total and fatal conflict with applicable constitutional prohibitions.”’ 

[Citation.] Facial challenges may be raised for the first time on appeal.” (People v. 

Alexander (2023) 91 Cal.App.5th 469, 474 (Alexander).)

“‘The interpretation of a statute and the determination of its constitutionality are 

questions of law. In such cases, appellate courts apply a de novo standard of review.’” 

(Alexander, supra, 91 Cal.App.5th at p. 474.)
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2. The Second Amendment 

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.” (U.S. Const., 2d Amend.) 

In Alexander, we rejected a defendant’s Second Amendment challenge to the laws 

prohibiting felons from possessing firearms (§ 29800, subd. (a)(1)) and ammunition 

(§ 30305, subd. (a)(1)). (Alexander, supra, 91 Cal.App.5th at pp. 477, 479.) In reaching 

that conclusion, we described in detail the United States Supreme Court’s recent opinions 

analyzing the Second Amendment. (Alexander, at pp. 475-477.) We summarize the 

relevant holdings here. 

In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the United States 

Supreme Court “held that the Second Amendment confers ‘an individual right to keep 

and bear arms’ (Heller, supra, at p. 595) for the ‘core lawful purpose of self-defense’

(id. at p. 630), which the court identified as being ‘central to the Second Amendment 

right’ (id. at p. 628).” (Alexander, supra, 91 Cal.App.5th at p. 475.) The court concluded 

that the District of Columbia’s “ban on possessing operable weapons in the home 

violated the Second Amendment’s guarantee of ‘the right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.’” (Ibid., quoting Heller, supra, at 

p. 635.)

Heller nevertheless explained that “the Second Amendment is not unlimited” and 

is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and 
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for whatever purpose.” (Heller, supra, 554 U.S. at p. 626.) The Heller court “cautioned

that ‘nothing’ in its 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 government buildings, or 

laws imposing conditions and qualifications on the commercial sale of arms.’” 

(Alexander, supra, 91 Cal.App.5th at p. 475, quoting Heller, at pp. 626-627.)

Following Heller, the United States Supreme Court held that the Second 

Amendment applies to the states through the Fourteenth Amendment. (McDonald v. City 

of Chicago (2010) 561 U.S. 742, 791 (McDonald); Alexander, supra, 91 Cal.App.5th at 

p. 475.) After Heller, lower courts adopted a two-step test for analyzing challenges under 

the Second Amendment. (Bruen, supra, 142 S.Ct. at pp. 2125-2126; Alexander, at 

p. 475.) Applying that test, courts “first asked ‘“whether the challenged law burden[ed]

conduct that [fell] within the scope of the Second Amendment’s guarantee” of protecting 

the right of responsible, law-abiding citizens to possess firearms to protect their home.’ 

[Citation.] If the law did not impose such a burden, then the inquiry ended. [Citation.] 

But if the law ‘infringe[d] on a law-abiding citizen’s right to possess firearms to protect 

their home, then the court [was required to] inquire into “the strength of the government’s 

justification” for the law by balancing—under the appropriate level of scrutiny—the 

statute’s objectives against the means it employ[ed] to accomplish those ends.’” 

(Alexander, at p. 476.)
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As we explained in Alexander, the United States Supreme Court rejected that 

approach in Bruen, “concluding that the test was ‘one step too many’ and that Heller did 

not support application of the second step’s means-end inquiry.” (Alexander, supra, 91

Cal.App.5th at p. 476, quoting Bruen, supra, 142 S.Ct. at p. 2127.) “In rejecting that 

approach, the court noted that ‘[t]he Second Amendment “is the very product of an 

interest balancing by the people” and it “surely elevates above all other interests the right 

of law-abiding, responsible citizens to use arms” for self-defense.’” (Alexander, at 

p. 476, quoting Bruen, at p. 2131.) 

Bruen set forth a new test for analyzing constitutionality under the Second 

Amendment, as follows: “When the Second Amendment’s plain text covers an 

individual’s conduct, the Constitution presumptively protects that conduct. The 

government must then justify its regulation by demonstrating that it is consistent with the 

Nation’s historical tradition of firearm regulation. Only then may a court conclude that 

the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” 

(Bruen, supra, 142 S.Ct. at pp. 2129-2130; Alexander, supra, 91 Cal.App.5th at p. 476.) 

In determining “whether a modern firearm regulation has a ‘relevantly similar’ historical 

analogue [(Bruen, at p. 2132)], courts should consider ‘at least two metrics: how and 

why the regulations burden a law-abiding citizen’s right to armed self-defense.’” 

(Alexander, at p. 476.)

Applying that analytical framework, “Bruen concluded that New York’s concealed 

carry licensing regime, which required applicants to demonstrate proper cause to get a 
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license, was unconstitutional ‘in that it prevents law-abiding citizens with ordinary selfdefense needs from exercising their right to keep and bear arms.’” (Alexander, supra, 91

Cal.App.5th at p. 476.) In reaching its conclusion, the court contrasted the proper cause 

requirement in “‘may issue’” concealed carry licensing regimes such as New York’s and 

California’s (Bruen, supra, 142 S.Ct. at p. 2124) “with ‘“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’ [(Bruen, at p. 2123)]. The court noted 

that ‘nothing’ in its ‘analysis should be interpreted to suggest the unconstitutionality of 

the 43 States’ “shall-issue” licensing regimes, under which “a general desire for selfdefense is sufficient to obtain a [permit].”” (Alexander, at p. 477.)

Bruen held “‘that the Second and Fourteenth Amendments protect an individual’s 

right to carry a handgun for self-defense outside of the home.’ [(Bruen, supra, 142 S.Ct.

at p. 2122.)] The court indicated that Bruen was ‘consistent with Heller and McDonald,’ 

which had ‘recognized that the Second and Fourteenth Amendments protect the right of 

an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.’” 

(Alexander, supra, 91 Cal.App.5th at p. 477.) 

3. Possession of Controlled Substances While Armed

Allen first challenges the constitutionality of Health and Safety Code section 

11370.1, which provides that “every person who unlawfully possesses any amount of 

[specified controlled substances] while armed with a loaded, operable firearm is guilty of 
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a felony.” (Id., subd. (a).) Several months before Bruen was decided, we held that

Health and Safety Code section 11370.1 does not violate the Second Amendment. 

(Gonzalez, supra, 75 Cal.App.5th at pp. 912-916.) Applying the post-Heller test for 

assessing Second Amendment challenges, we concluded that the law did not burden 

protected conduct (Gonzalez, at p. 912), because the Second Amendment protects “lawabiding citizens only” and does not “protect[] a right to carry a gun while simultaneously 

engaging in criminal conduct” (Gonzalez, at p. 913). Gonzalez remains good law after 

Bruen.

In Gonzalez, we concluded that the prohibition in Health and Safety Code section 

11370.1—criminalizing possession of a loaded, operable firearm while in unlawful 

possession of controlled substances—is constitutional under the first step of the postHeller test. (Gonzalez, supra, 75 Cal.App.5th at p. 912.) We consequently did not 

engage in the means-end inquiry in the second step of the post-Heller test. (Gonzalez, at 

p. 912.) The first step of the post-Heller test for assessing constitutional challenges under 

the Second Amendment survives Bruen. Bruen held that the means-end inquiry 

conducted at the second step was “one step too many” (Bruen, supra, 142 S.Ct. at 

p. 2127) and was incompatible with Heller (Bruen, at p. 2129). But the inquiry at the 

first step remains the same, namely, whether the prohibited conduct is covered by the 

Second Amendment. (Bruen, at pp. 2129-2130; Alexander, supra, 91Cal.App.5th at 

p. 476.) 
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Given that in Gonzalez we concluded that Health and Safety Code section 11370.1 

was constitutional at the first step of the analysis, Gonzalez’s analysis remains sound 

under Bruen. We see no reason to depart from this court’s precedent concerning the 

facial validity of Health and Safety Code section 11370.1 under the Second Amendment. 

(Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) As we explained in Gonzalez, 

because the firearm possession prohibition in Health and Safety Code section 11370.1 

does not affect the individual right of “‘law-abiding, responsible citizens’” to possess 

firearms (Bruen, supra, 142 S.Ct. at p. 2131; Heller, supra, 554 U.S. at p. 635), Allen’s 

challenge to the constitutionality of the provision under the Second Amendment fails. 

(Gonzalez, supra, 75 Cal.App.5th at pp. 912-913.)

Allen’s arguments cast no doubt on the conclusion. Allen focuses exclusively on 

the second step of the Bruen analysis, arguing that there were “no regulation[s] in or 

around 1791 that prohibited individuals in possession of any drug from also being armed” 

and that there are no other relevant, analogous prohibitions. That argument does not 

undermine our analysis in Gonzalez, because under Bruen we need not analyze whether a 

regulation is “consistent with the Nation’s historical tradition of firearm regulation” if the

individual’s regulated conduct is not covered by the Second Amendment. (Bruen, supra, 

142 S.Ct. at p. 2130.) 

4. Carrying a Loaded and Unregistered Firearm in a Vehicle

Allen also contends that the law criminalizing “possession of a loaded, 

unregistered firearm in vehicle” violates the Second Amendment. (§ 25850, subds. (a), 
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(c)(6).) We reject the argument because Bruen did not invalidate all firearm registration 

requirements and Allen does not challenge the validity of California’s firearm registration 

regime.

Section 25850(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 or in any public place or on any public 

street in a prohibited area of unincorporated territory.” Subdivision (c) of section 25850 

sets forth various punishments for violations of section 25850(a), depending upon the 

presence of certain additional circumstances. (§ 25850, subd. (c)(1)-(6).) Subdivision 

(c)(6) of section 25850 provides that when the person carrying the loaded firearm in 

violation of section 25850(a) “is not listed with the Department of Justice pursuant to 

Section 11106 as the registered owner of the handgun,” the violation is punishable “by 

imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a 

county jail not to exceed one year, or by a fine not to exceed one thousand dollars 

($1,000), or both that fine and imprisonment.”

Allen argues that carrying a loaded and unregistered “firearm in a vehicle is now a 

constitutional right under Bruen.” (Initial capitalization and italicization omitted.) The 

argument is foreclosed by Heller and Bruen. Heller explained that “the Second 

Amendment is not unlimited” and is “not a right to keep and carry any weapon 

whatsoever in any manner whatsoever and for whatever purpose.” (Heller, supra, 554 

U.S. at p. 626.) And Bruen indicated that it was “consistent with Heller.” (Bruen, supra, 
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142 S.Ct. at p. 2122.) Moreover, Bruen emphasized that “nothing in [its] analysis should 

be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing 

regimes,” which include background check and safety course requirements, because such 

licensing schemes appeared “designed to ensure only that those bearing arms in the 

jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” (Id. at p. 2138, fn. 9.) Thus, 

according to Bruen, the Second Amendment does not prohibit states from requiring

individuals to submit to certain licensing requirements in order to legally possess a 

firearm. Bruen accordingly does not stand for the proposition that the Second 

Amendment affords individuals the unfettered right to carry an unregistered firearm 

while in a vehicle.

Moreover, the criminalization of carrying a loaded and unregistered firearm in a 

vehicle (§ 25850, subds. (a), (c)(6)) is necessarily a consequence of California’s firearm 

registration laws. Allen does not argue that those laws are unconstitutional. Moreover, 

the Court of Appeal has twice rejected the argument that those laws are unconstitutional 

under Bruen. (In re D.L. (2023) 93 Cal.App.5th 144, 147-148; id. at p. 148 [rejecting 

facial challenge to § 25850, subd. (a) (carrying a loaded firearm) and concluding that “[i]t 

remains constitutional to punish someone without a license for carrying a loaded firearm 

in public”]; In re T.F.-G. (2023) 94 Cal.App.5th 893, 913 [appellant was “unable to meet 

the heavy burden of establishing that in at least the generality or great majority of cases, 

it will be unconstitutional to criminalize carrying a loaded firearm in public without 
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satisfying one of the statutory exemptions, such as complying with California’s licensing 

regime”].)

Given that Bruen does not prohibit states from regulating firearm possession and 

Allen does not challenge the constitutionality of California’s firearm licensing 

requirements, we conclude that Allen’s challenge to the constitutionality of the 

prohibition on carrying a loaded and unregistered firearm while in a vehicle fails.

B. Section 654

Section 654 prohibits multiple punishments for “different crimes [that] were 

completed by a ‘single physical act.’” (People v. Corpening (2016) 2 Cal.5th 307, 311;

§ 654, subd. (a).) When two offenses arise from a single act but require different 

elements of proof, a defendant may be properly convicted of both but not punished for 

both. (People v. Rocha (1978) 80 Cal.App.3d 972, 975-977.) If “a defendant suffers two 

convictions, punishment for one of which is precluded by section 654, that section 

requires the sentence for one conviction to be imposed, and the other imposed and then 

stayed.” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The trial court has 

discretion to choose which sentence to stay. (§ 654, subd. (a); People v. Mani (2022) 74 

Cal.App.5th 343, 379.)

Allen argues that the trial court violated section 654 by imposing sentences for

both of his convictions. The People concede the error, and we agree. The trial court 

should have stayed the sentence for one of the convictions under section 654 because 

Allen’s possession of a firearm while in possession of controlled substances and 
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possession of an unregistered, loaded firearm in a vehicle were the same act. (People v. 

Jones (2012) 54 Cal.4th 350, 357 [“a single possession or carrying of a single firearm on 

a single occasion may be punished only once under section 654”]; People v. Williams 

(2009) 170 Cal.App.4th 587, 645-646.) We remand the matter to the trial court to 

determine whether the sentence for count 1 or count 2 should be stayed under section 

654.

DISPOSITION

We vacate Allen’s sentence and remand the matter to the trial court for 

resentencing to determine whether to stay the sentence for count 1 or count 2 under 

section 654. In all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

MENETREZ

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.