Filed 9/15/23 P. v. Alvarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN ISAAC ALVAREZ,

Defendant and Appellant.

 H050620

 (Santa Cruz County

 Super. Ct. No. 22CR04258)

I. INTRODUCTION

Defendant Bryan Isaac Alvarez pleaded no contest to a single felony count of 

carrying a loaded concealed firearm for which he was not listed as the registered owner 

(Pen. Code, § 25400, subd. (c)(6)).

1

 The trial court suspended imposition of sentence and 

placed defendant on probation for two years with various terms and conditions, including 

serving 60 days in county jail.

Defendant asserts that his conviction violates his Second Amendment right to 

possess a firearm, citing the United States Supreme Court’s decision in New York State 

Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111, 213 L.Ed.2d 

387] (Bruen). For reasons that we will explain, we will affirm the judgment.

1 All further statutory references are to the Penal Code.
2

II. BACKGROUND

After the trial court overruled defendant’s demurrer asserting that the statute under 

which he was charged violated the Second Amendment, defendant pleaded no contest to 

one felony count of carrying a loaded concealed firearm for which he was not listed as 

the registered owner. The trial court previously dismissed one felony count of possession 

of a firearm by a minor (§ 29610) pursuant to the prosecution’s motion. Defendant 

waived his rights to a preliminary hearing and a presentencing report. The factual basis 

for defendant’s plea was announced as follows: “On the date and time listed in the 

complaint in the county of Santa Cruz the defendant did carry a loaded firearm when he 

was not eligible to possess it.” Defendant obtained a certificate of probable cause to 

challenge the overruling of his demurrer, and this appeal followed.

III. DISCUSSION

Defendant asserts that his conviction violates the Second Amendment to the 

United States Constitution. He argues that California’s firearms licensing statutes are 

unconstitutional, citing the United States Supreme Court’s decision in Bruen, supra. He 

argues that the firearms licensing statutes cannot be saved by judicial revision, and that 

even if they could, his conviction still must be reversed because the licensing statutes in 

effect at the time of the charged offense were unconstitutional.

The Attorney General concedes that one portion of California’s firearms licensing 

statutes, the “good cause” requirement, is unconstitutional under Bruen. However, the 

Attorney General asserts that this requirement is no longer enforced by the state and is 

severable from the remaining requirements of the licensing statutes, which the Attorney 

General argues remain constitutional. The Attorney General also asserts that defendant 

does not have standing to raise his constitutional challenge, because he has not 

established that he would otherwise have been issued a license under the remaining

licensing requirements. The Attorney General also contends that the firearms licensing 

statutes are enforceable even if they require judicial revision.
3

In reply to the Attorney General’s standing argument, defendant states that his 

challenge to the firearms licensing statutes is a facial one, and thus he asserts that he has 

standing to raise this challenge.

A. Legal Principles and Standard of Review

“ ‘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.’ [Citation.]” (People v. Alexander (2023) 91 Cal.App.5th 469, 474.)

“An ‘as applied’ challenge ‘contemplates analysis of the facts of a particular case

or cases to determine the circumstances in which the statute or ordinance has been

applied and to consider whether in those particular circumstances the application

deprived the individual to whom it was applied of a protected right.’ [Citation.] ‘When a

criminal defendant claims that a facially valid statute or ordinance has been applied in a

constitutionally impermissible manner to the defendant, the court evaluates the propriety

of the application on a case-by-case basis to determine whether to relieve the defendant

of the sanction.’ [Citation.]” (In re D.L. (2023) 93 Cal.App.5th 144, 157–158 (D.L.).) 

Conversely, “ ‘[a] facial challenge to the constitutional validity of a statute or ordinance 

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

circumstances of an individual.’ [Citation.] A facial challenge seeks to void the statute 

as a whole by showing that ‘ “no set of circumstances exists under which the Act would 

be valid,” i.e., that the law is unconstitutional in all its applications.’ [Citation.] Put 

another way, ‘a facial challenge must fail where the statute has a “ ‘plainly legitimate 

sweep.’ ” ’ [Citation.]” (Id. at p. 157.)

B. Bruen

In Bruen, the United States Supreme Court examined New York’s firearm 

licensing requirements, which stated that a person who seeks to possess a firearm at home 

or in one’s place of business “must convince a ‘licensing officer’—usually a judge or law 

enforcement officer—that, among other things, he [or she] is of good moral character, has 
4

no history of crime or mental illness, and that ‘no good cause exists for the denial of the 

license.’ [Citation.]” (Bruen, supra, 597 U.S. at p. ___ [142 S.Ct. at pp. 2122–2123].) 

To obtain an unrestricted license to carry a firearm outside the applicant’s home or 

business, New York required the applicant to demonstrate that “ ‘proper cause exists’ ”

for the license. (Id. at p. ___ [142 S.Ct. at p. 2123].) The court extended its earlier 

decisions to hold that the Second Amendment protects “an individual’s right to carry a 

handgun for self-defense outside the home.” (Id. at p. ___ [142 S.Ct. at p. 2122].) The 

court then held that the test for assessing the constitutionality of a firearms restriction 

under the Second Amendment is 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.’ ” (Id. at p. ___ [142 S.Ct. at pp. 2129–2130].) The court 

observed that 43 states issue licenses based on objective criteria, but that New York was 

one of six states in which “the government further conditions issuance of a license to 

carry on a citizen’s showing of some additional special need.” (Id. at p. ___ [142 S.Ct. at 

p. 2122].) The court thus held that New York’s licensing framework violates the Second 

Amendment by requiring an applicant to show “a special need for self-defense . . . .” 

(Ibid.)

The Bruen court, however, stated that an individual’s right to carry firearms 

outside the home is still “subject to certain reasonable, well-defined restrictions.” 

(Bruen, supra, 597 U.S. at p. ___ [142 S.Ct. at p. 2156].) The court recognized that the 

analysis to determine whether a restriction is consistent with the nation’s historical 

tradition of firearm regulation under the Second Amendment is not a “regulatory 

straightjacket,” and it repeated its assurance from an earlier decision that the Second 

Amendment does not protect a right to “ ‘keep and carry any weapon whatsoever in any 
5

manner whatsoever and for whatever purpose.’ ” (Id. at pp. ___ [142 S.Ct. at pp. 2128, 

2133].) In his concurring opinion, Justice Kavanaugh (joined by Chief Justice Roberts) 

wrote “to underscore . . . the limits of the Court’s decision.” (Id. at p. ___ [142 S.Ct. at p. 

2161] (conc. opn. of Kavanaugh, J.).) Justice Kavanaugh observed that the court’s 

decision “does not prohibit States from imposing licensing requirements for carrying a 

handgun for self-defense.” (Ibid.)

C. California’s Firearms Licensing Statutes

California restricts the ability to carry firearms in public places. (§§ 25850, 

subd. (a), 26350.) Under the statute defendant was convicted of violating, carrying a 

concealed firearm in a vehicle or on the defendant’s person is punishable if: (1) the 

firearm is loaded, or if both the firearm and the unexpended ammunition are in the 

immediate possession of the person or readily accessible to that person; and (2) the 

person is not listed as the registered owner of the firearm. (§ 25400, subds. (a) & (c)(6).) 

However, a person may apply for a license to carry a concealed weapon. (§§ 26150, 

subd. (a), 26155, subd. (a).) Under the concealed carry license statutes, the sheriff or 

chief of police may issue a license to the applicant upon proof of all of the following: 

(1) the applicant is of good moral character; (2) good cause exists for issuance of the 

license; (3) the applicant resides or works in the city or county; and (4) the applicant has 

completed a course of training. (§§ 26150, subd. (a), 26155, subd. (a).) However, the 

Attorney General asserts that the day after the Bruen decision, the Attorney General 

issued an alert recognizing that the good cause requirement was unconstitutional under 

Bruen and instructing local officials not to enforce the good cause requirement and to 

continue applying and enforcing all other requirements to obtain a license. Defendant 

does not contest this assertion.
6

D. Bruen’s Impact on California’s Licensing Statutes

Post-Bruen, courts – including this one – have concluded that California’s firearms 

licensing statutes do not violate individuals’ Second Amendment rights. In D.L., the 

Court of Appeal rejected a minor’s contention that “section 25850 must be 

unconstitutional on its face as a result of its relationship to California’s laws for obtaining 

a license to carry a concealed weapon.”2 (D.L., supra, 93 Cal.App.5th at p. 147.) The 

D.L. court first concluded that the minor had standing to raise a facial challenge to 

section 25850. (D.L., supra, at p. 148.) The Court of Appeal held that the good cause 

requirement of California’s firearms licensing laws “is severable from the balance of 

California’s concealed carry licensing framework,” and it held that “[i]t remains 

constitutional to punish someone without a license for carrying a loaded gun in public.” 

(Ibid.)

Additionally, this court rejected a facial challenge to section 25850 in In re 

T.F.-G. (Aug. 24, 2023, H050112) ___ Cal.App.5th ___ [2023 Cal.App.LEXIS 639] 

(T.F.-G.).) This court first rejected the Attorney General’s contention that the minor 

lacked standing to challenge the constitutionality of section 25850 unless he could show 

that he would have been able to obtain a license but for the unconstitutional provision. 

(T.F.-G., supra, at p. ___ [2023 Cal.App.LEXIS 639 at pp. 25–26].) This court noted 

that California’s good cause requirement contains the same deficiency that the United 

States Supreme Court in Bruen found in New York’s law. (T.F.-G., supra, at p. ___ 

[2023 Cal.App.LEXIS 639 at pp. 26–27].) However, this court noted that the challenges 

in Bruen and other United States Supreme Court Second Amendment decisions were not 

facial challenges, while T.F.-G. challenged “neither the application of a licensing 

requirement to unconstitutionally infringe his right to bear arms nor the imposition of 

2 Section 25850 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.” (§ 25850, subd. (a).)
7

criminal penalties against him as a consequence of such requirement, but instead the 

state’s authority to impose criminal penalties on any individual who carries a loaded 

handgun in public in violation of the state’s licensing regime, regardless of whether the 

noncompliance stemmed from a constitutionally sound requirement.” (T.F.-G., supra, at 

p. ___ [2023 Cal.App.LEXIS 639 at p. 28].) This court concluded: “To hold that 

section 25850, the enforcement mechanism of the licensing regime, is facially 

unconstitutional, we would need to find that section 25850 has no significant application 

in constitutionally valid circumstances—i.e., that it is unconstitutional in at least the 

generality or great majority of cases. [Citation.] Although we can identify two 

theoretical pathways to such a conclusion, neither is available here, because the 

constitutional defect is severable from the broader licensing regime, and the state retains 

authority to regulate firearm possession via licensure.” (Id. at p. ___ [2023 

Cal.App.LEXIS 639 at pp. 31–32].)

E. Analysis

We hold, consistent with the decisions in D.L. and T.F.-G., that defendant’s 

Second Amendment challenge to the state’s firearms licensing statutes fails. In light of 

defendant’s concession that his challenge is a facial one rather than a challenge as applied 

to the facts of his case, we assume without deciding that defendant has standing to bring 

his constitutional challenge. Assuming defendant has standing, his challenge fails for the 

reasons outlined in D.L. and T.F.-G. In defendant’s opening brief, he not only challenges 

the good cause requirement but also the “may issue” and “good moral character”

language. However, this language does not violate the Second Amendment because 

Bruen imposed no prohibition against such provisions, as the court in D.L. recognized. 

(D.L., supra, 93 Cal.App.5th at p. 166.) The state is permitted to keep in place a 

reasonable licensing framework. The only provision in New York’s licensing framework 

that the Supreme Court invalidated that has an analogue in California law is California’s 
8

good cause requirement. The day after the Bruen decision was issued, the Attorney

General instructed local officials not to enforce the good cause requirement but to 

continue to apply the remaining licensing prerequisites. Defendant does not take issue 

with the Attorney General’s assertion that this instruction has occurred and has been 

carried out, and defendant does not oppose the Attorney General’s contention that the 

good cause provision is severable from the remaining portions of California’s firearms 

licensing framework. Instead, defendant rests his argument on the notion that “fixing an 

unconstitutional provision does not go back in time and make the statute as it was 

construed at the time of Mr. Alvarez’s conduct constitutional.” Defendant relies on 

Shuttlesworth v. Birmingham (1969) 394 U.S. 147 (Shuttlesworth), and Staub v. City of 

Baxley (1958) 355 U.S. 313 (Staub) for this position.

Although California’s firearms licensing framework contained a constitutionally 

invalid requirement at the time of defendant’s offense, Shuttlesworth and Staub do not 

support the position that defendant’s conviction must be overturned. In Staub, the 

defendant was convicted of violating a city ordinance that required a permit before 

organizing factory workers for union activity. (Staub, supra, 355 U.S. at pp. 314–316.) 

The state argued that the defendant lacked standing to challenge the constitutionality of 

the ordinance because she made no attempt to secure a permit under the ordinance. (Id.

at p. 319.) The United States Supreme Court rejected the lack of standing argument, 

holding that “the failure to apply for a license under an ordinance which on its face 

violates the Constitution does not preclude review in this Court of a judgment of 

conviction under such an ordinance.” (Ibid.) The court then found the ordinance 

unconstitutional and reversed the conviction, and the decision did not discuss any 

possibility of rewriting the ordinance to make it constitutionally permissible. (Id. at 

p. 325.)

In Shuttlesworth, the defendant was convicted for violating an ordinance which 

proscribed participating in any public demonstration without first obtaining a permit from 
9

the city. (Shuttlesworth, supra, 394 U.S. at p. 148.) The court, citing Staub, held that the 

ordinance was “squarely” unconstitutional under longstanding First Amendment 

precedent, holding that a requirement to obtain a permit that officials could grant or 

withhold at their discretion was an unconstitutional prior restraint on freedom of speech. 

(Shuttlesworth, supra, at pp. 150–151.) The court also noted that “a person faced with 

such an unconstitutional licensing law may ignore it and engage with impunity in the 

exercise of the right of free expression for which the law purports to require a license.” 

(Id. at p. 151.) The Alabama Supreme Court attempted to rewrite the ordinance to make 

it an “objective and even-handed regulation of traffic,” a transformation the United States

Supreme Court characterized as “a remarkable job of plastic surgery upon the face of the 

ordinance.” (Id. at pp. 153–155.) The United States Supreme Court held that “[i]t would 

have taken extraordinary clairvoyance for anyone to perceive that this language meant 

what the Supreme Court of Alabama was destined to find that it meant more than four 

years later; and, with First Amendment rights hanging in the balance, we would hesitate 

long before assuming that either the members of the [city] or the petitioner possessed any 

such clairvoyance at the time of [the defendant’s arrest].” (Id. at p. 156.) Thus, the court 

reversed the judgment in the defendant’s case. (Id. at p. 159.)

Shuttlesworth and Staub are distinguishable from the instant case. Staub merely 

held that the failure to apply for a permit did not mean the defendant lacked standing. 

Here, we have analyzed defendant’s Second Amendment challenge assuming that he has 

standing. In Shuttlesworth, the permitting ordinance was wholly invalid, and it could be 

saved only with extensive rewriting by the Alabama Supreme Court to make it neutral 

and thus constitutionally permissible. The defendant in Shuttlesworth was permitted to 

ignore the ordinance because its existence constituted an improper prior restraint on 

protected First Amendment activity. Likewise, in Staub, the constitutional problem was 

the existence of the permit requirement, not one isolated requirement for obtaining a 

license among several valid requirements. In the instant case, even with the removal of 
10

the good cause requirement, Californians are still required to obtain a license to carry a 

concealed firearm in public, and numerous valid requirements remain for a person to 

obtain such a license. Post-Bruen, the state retains the ability to impose a requirement to 

obtain a license for concealed carry of a firearm in public. Defendant was not free to 

ignore the state’s still-constitutional licensing requirements and engage with impunity in 

carrying a concealed firearm in public without a license. Thus, Shuttlesworth and Staub

do not mean defendant’s conviction must be reversed when the majority of the licensing 

requirements survive Bruen and the offending requirement is severable.

Post-Bruen, the state maintains constitutionally permissible concealed carry 

licensing requirements. The only licensing requirement that Bruen held is 

constitutionally impermissible – the good cause requirement – is severable and is no 

longer being required. Because defendant did not comply with the licensing 

requirements, defendant’s conviction for carrying a concealed firearm without a license 

does not violate the Second Amendment.

IV. DISPOSITION

The judgment is affirmed.
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

GREENWOOD, P.J.

WILSON, J.

People v. Alvarez

H050620