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Filed 2/28/24 P. v. Leedy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAKIM EXAVIER LEEDY,

Defendant and Appellant.

C098151

(Super. Ct. No. 22F01677)

Defendant Rakim Exavier Leedy appeals following his convictions for possessing 

an assault weapon, possessing a controlled substance for sale, and several other offenses. 

He raises two arguments: (1) a state law generally barring possession of assault weapons 

violates the Second Amendment, and (2) he received ineffective assistance because his 

trial counsel failed to object to the trial court’s finding that he had the ability to pay 
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certain fees and fines. We affirm, finding neither argument has merit, but will direct the 

trial court to issue an amended abstract of judgment to correct a clerical error.

BACKGROUND

While conducting surveillance, an officer saw Leedy leave an apartment with a 

duffel bag and a cooler. Leedy walked to a nearby car, placed the duffel bag and cooler 

in the trunk, and got in the passenger seat. Officers stopped the car shortly after and 

conducted a search. On searching the cooler in the trunk, officers found four large bags 

of cannabis. On searching the duffel bag in the trunk, they found, among other things, an 

AR-15 style rifle, a high-capacity magazine holding over 10 rounds, a Glock-style pistol, 

additional rounds of ammunition, MDMA, and OxyContin pills.

Following the filing of charges against Leedy, a jury found Leedy guilty of two 

counts of being a felon in possession of a firearm (Pen. Code,1 § 29800, subd. (a)), three 

counts of possessing a controlled substance (Health & Saf. Code, §§ 11350, 11377), and 

one count each of possessing an assault weapon (§ 30605, subd. (a)), unlawfully 

possessing ammunition (§ 30305, subd. (a)(1)), receiving a large-capacity magazine 

(§ 32310, subd. (a)), possessing a controlled substance for sale (Health & Saf. Code, 

§ 11378), and transporting cannabis for sale (id., § 11360, subd. (a)(2)). The jury also 

found that Leedy was 18 or older when he transported the cannabis for sale. Following 

the jury’s verdicts, the trial court held a bench trial and found true several allegations. It 

found Leedy had a prior strike conviction for assault with a firearm (§ 1170.12, subd. 

(b)(1); see § 1192.7, subd. (c)(31)) and found his prior convictions were of increasing 

seriousness (Cal. Rules of Court, rule 4.421(b)(2)). 

Leedy afterward filed a motion in arrest of judgment under section 1185, arguing 

that the statutes prohibiting possession of assault weapons and large-capacity magazines

1 Undesignated statutory references are to the Penal Code.
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are unconstitutional. But the trial court denied the motion. The court sentenced Leedy to 

a total term of seven years four months in prison and ordered him to pay $2,200 in fees 

and fines. Leedy timely appealed.

DISCUSSION

I

Second Amendment

Leedy first raises a facial challenge to section 30605. He argues the statute, in 

generally prohibiting possession of an assault weapon, violates the Second Amendment 

of the United States Constitution. We reject his argument—an argument our court has 

rejected already. (People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1239 (Bocanegra); 

see also People v. James (2009) 174 Cal.App.4th 662, 667 [rejecting Second Amendment 

challenge to § 30605’s predecessor].)

A. Bruen

The Second Amendment states: “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.” The Supreme Court has found this language protects an individual right to 

possess and carry arms for self-defense (District of Columbia v. Heller (2008) 554 U.S. 

570, 592, 595, 620 (Heller)) and, under the Fourteenth Amendment, has found this “right 

is fully applicable to the States” (McDonald v. Chicago (2010) 561 U.S. 742, 750). The 

court, however, has emphasized that “ ‘[l]ike most rights, the right secured by the Second 

Amendment is not unlimited.’ ” (New York State Rifle & Pistol Assn., Inc. v. Bruen

(2022) 597 U.S. 1, 21 (Bruen).) It does not extend to all weapons (Heller, at p. 623), nor 

does it prohibit all government regulation even for those weapons it covers (Bruen, at p. 

24).

In determining whether a weapon regulation is consistent with the Second 

Amendment, courts apply the standard described in Bruen. Under that standard, a party 

challenging the regulation must first show the Second Amendment’s plain text applies, 
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including showing that the weapons covered in the regulation are “Arms” within the 

meaning of the Second Amendment. (Bruen, supra, 597 U.S. at p. 24; Bevis v. City of 

Naperville (7th Cir. 2023) 85 F.4th 1175, 1194 [parties challenging weapon regulation 

have the “burden of showing that the weapons addressed in the pertinent legislation are 

Arms”]; Del. State Sportsmen’s Assn., Inc. v. Del. Dept. of Safety & Homeland Sec. 

(D.Del. 2023) 664 F.Supp.3d 584, 591 [same].) Once a party has established that the 

Second Amendment’s plain text applies, “[t]he government must then justify its 

regulation by demonstrating that it is consistent with the Nation’s historical tradition of 

firearm regulation.” (Bruen, at p. 24.) Courts after Bruen have called this two-step

standard “Bruen step one” and “Bruen step two.” (Bevis, at p. 1198; United States v. 

Alaniz (9th Cir. 2023) 69 F.4th 1124, 1128.)

Several issues concerning this standard remain unsettled following Bruen. 

(See Bruen, supra, 597 U.S. at p. 82 (conc. opn. of Barrett, J.) [mentioning “just a few 

unsettled questions”].) One of those issues, and the only one we consider here, concerns 

whether the weapons covered in a challenged law are in common use for lawful

purposes—a critical consideration under Bruen. As the Supreme Court has explained, 

“the Second Amendment protects the possession and use of weapons that are ‘ “in 

common use at the time” ’ ” (Bruen, at p. 21) and “does not protect those weapons not 

typically possessed by law-abiding citizens for lawful purposes, such as short-barreled 

shotguns” (Heller, supra, 554 U.S. at p. 625). 

Although the court has highlighted the importance of this consideration, it has not 

yet explained “whether the common-use issue belongs at Bruen step one or Bruen step 

two.” (Bevis v. City of Naperville, supra, 85 F.4th at p. 1194.) This issue matters to the 

allocation of burdens. Does the challenging party have the burden at step one to show a 

regulated weapon is in common use for lawful purposes? Or does the government have 

the burden at step two to prove a negative—the regulated weapon is not in common use 

for lawful purposes? Consistent with several courts that have addressed this matter, we 
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conclude that common use is properly addressed at Bruen step one. (United States v. 

Alaniz, supra, 69 F.4th at p. 1128; National Assn. for Gun Rights v. Lamont (D.Conn., 

Aug. 3, 2023, No. 3:22-1118 (JBA)) 2023 U.S.Dist. Lexis 134880, at p. *51; Hanson v. 

District of Columbia (D.D.C., Apr. 20, 2023, No. 22-2256 (RC)) 2023 U.S.Dist. Lexis 

68782, at p. *21; Del. State Sportsmen’s Assn., Inc. v. Del. Dept. of Safety & Homeland 

Sec., supra, F.Supp.3d at p. 591; Oregon Firearms Federation, Inc. v. Brown (D.Or. 

2022) 644 F.Supp.3d 782, 799.) 

Two principal considerations guide our conclusion that common use pertains more 

to a challenging party’s need to show the Second Amendment’s plain text applies (Bruen

step one) than to the government’s need to show its regulation is consistent with the 

historical tradition of firearm regulation (Bruen step two). First, in applying its own twopart standard, the Bruen court covered common use when discussing the applicability of 

the Second Amendment’s plain text, not when discussing the historical tradition of 

firearm regulation. (Bruen, supra, 597 U.S. at pp. 32-34.) Second, consistent with 

Bruen, Heller suggests that common use is critical to understanding the types of weapons 

considered to be bearable “Arms,” a textual issue, explaining that “the Second 

Amendment right . . . extends only to certain types of weapons” (Heller, supra, 554 U.S. 

at p. 623) and that “the sorts of weapons protected were those ‘in common use at the 

time’ ” (id. at p. 627). Consistent with these authorities, we find common use is 

appropriately addressed at Bruen step one.

B. Applying Bruen

Applying Bruen’s framework here, we find Leedy has not met his burden to show 

that the assault weapons covered in section 30605 are in common use for lawful 

purposes. Because he raises only a facial challenge, his burden is particularly heavy. 

Our Supreme Court—noting the relevant “standard governing facial challenges has been 

a matter of some debate”—has explained that a party bringing a facial challenge must 

either show that the law is unconstitutional in all its applications (“the strictest 
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requirement for establishing facial unconstitutionality”) or that it is unconstitutional “ ‘in 

the generality or great majority of cases’ ” (“the more lenient standard” for establishing 

facial unconstitutionality). (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) 

Leedy has made neither showing, however, for he has not shown that all, most, or even 

any of the assault weapons covered in section 30605 are in common use for lawful 

purposes. (See §§ 30510 [defining assault weapon], 30515 [further defining assault 

weapon].) 

Attempting to show that these assault weapons are in common use, Leedy first 

cites our court’s decision in Bocanegra. He claims we acknowledged there that these 

weapons “ ‘are in common use in . . . jurisdictions’ ” other than California. But we never 

wrote those words. We instead only acknowledged the possibility that assault weapons 

like AR-15 rifles “may be in common use in other jurisdictions.” (Bocanegra, supra, 90 

Cal.App.5th at p. 1253.) We also concluded that these weapons “are ‘weapons not 

typically possessed by law-abiding citizens for lawful purposes’ ”—which if true, would 

be fatal to Leedy’s position here. (Id. at p. 1252; see Heller, supra, 554 U.S. at p. 625 

[“the Second Amendment does not protect those weapons not typically possessed by lawabiding citizens for lawful purposes”].)

Leedy next, quoting New York State Rifle & Pistol Assn. v. Cuomo (2d Cir. 2015) 

804 F.3d 242, 255, asserts “ ‘the assault weapons . . . at issue are “in common use” as that 

term was used in Heller.’ ” But Leedy never shows that the assault weapons at issue in 

the cited case—which were weapons covered under New York and Connecticut law (id.

at p. 247)—are the same assault weapons at issue here—which are weapons covered 

under California law (see City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 

1099 [courts “ ‘are not bound to develop appellants’ arguments for them’ ”]).

Citing another case, Heller v. District of Columbia (D.C. Cir. 2011) 399 U.S. 

App.D.C. 314 [670 F.3d 1244, 1261], Leedy contends “semi-automatic rifles are in 

common use” because “since 1986, roughly 1.6 million of them had been manufactured 
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and constituted, at that time, ‘5.5 percent of all firearms, and 14.4 percent of all rifles 

produced in the U.S. for the domestic market.’ ” But the quoted language shows only 

substantial production of semiautomatic rifles, not common use of these rifles. 

Production numbers and use numbers may often be correlated, but they are not the same 

thing. And even if we assumed that semiautomatic rifles are in common use, Leedy fails 

to appreciate that section 30605 does not prohibit the possession of all semiautomatic 

rifles. It only prohibits possession of certain types of semiautomatic rifles (see §§ 30500, 

30515), and Leedy has not shown that those types of rifles are in common use.

Leedy next cites a law review article for factual support. Quoting Chapman, Are 

Semiautomatic Rifles “Dangerous and Unusual” Weapons? (2023) 54 U.Tol. L.Rev. 

191, 210, he asserts: “ ‘[S]emiautomatic rifles like the AR-15 are widely owned and used 

by private citizens for lawful purposes in the millions. As such, they are in no way 

among the “dangerous and unusual” weapons historically outside the ambit of the 

traditional right to keep and bear arms and are well within the scope of the Second 

Amendment’s protection.’ ” But reviewing the quoted page of this article, we find no 

citation or explanation supporting this factual assertion. We decline to treat this as 

sufficient evidence that the assault weapons covered in section 30605 are, as Leedy 

claims, in common use. (See County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 

1450 [declining to take judicial notice of two law review articles].)

Even if we accepted the article’s factual assertions, moreover, Leedy has failed to 

show that all (or even many) of the referenced rifles are assault weapons prohibited under

section 30605. The term “assault weapon” is a defined term, with both section 30510 and 

section 30515 defining the term. Section 30515, subdivision (a)(1) provides the relevant 

definition here. It states that “assault weapon” means “[a] semiautomatic, centerfire rifle 

that does not have a fixed magazine but has any one of the following: [¶] (A) A pistol 

grip that protrudes conspicuously beneath the action of the weapon. [¶] (B) A thumbhole 

stock. [¶] (C) A folding or telescoping stock. [¶] (D) A grenade launcher or flare 
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launcher. [¶] (E) A flash suppressor. [¶] (F) A forward pistol grip.” (30515, subd. 

(a)(1).) The jury in this case, in finding Leedy possessed an assault weapon, found that 

his AR-15 style rifle had one or more of these characteristics. But Leedy has not shown

that any of these characteristics is typical of the rifles referenced in the law review article. 

Nor has he shown that these rifles are otherwise covered under the statutes defining 

“assault weapon.” 

Lastly, in his reply brief, Leedy cites Miller v. Bonta (S.D.Cal., Oct. 19, 2023, No. 

19-cv-01537 BEN (JLB)) 2023 U.S.Dist. Lexis 188421, app. pending. That court found 

that assault rifles like AR-15 rifles are commonly owned for lawful purposes (id. at p. 

*23) and issued an order—since stayed—enjoining enforcement of section 30605 to the 

extent it applies to the assault weapons described in section 30515, subdivision (a)(1)-(8) 

(Miller v. Bonta, at pp. *97-98). But while we may certainly consider that court’s 

analysis, neither its factual findings nor its legal conclusions are binding on our court. 

(People v. Bradley (1969) 1 Cal.3d 80, 86 [“we are not bound by the decisions of the 

lower federal courts even on federal questions”]; United States v. Mendoza (1984) 464 

U.S. 154, 159-163 [the government, after receiving an adverse ruling on an issue in one 

case, is generally not estopped from raising that issue in another case against a different 

party].) We also note that its factual findings appear to conflict with our own court’s 

findings in Bocanegra that these weapons are “ ‘not typically possessed by law-abiding 

citizens for lawful purposes.’ ” (Bocanegra, supra, 90 Cal.App.5th at p. 1252, italics 

added; see also People v. James, supra, 174 Cal.App.4th at p. 676 [“assault weapons, like 

machine guns, are not in common use by law-abiding citizens for lawful purposes”].) 

Finding no evidence in the record bearing on this topic, we have no ability to weigh in on 

the merits of these competing factual findings. (See Bruen, supra, 597 U.S. at p. 25, fn. 6

[anticipating that courts will “decide a case based on the historical record compiled by the 

parties”].)
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In the end, Leedy has cited nothing in the record showing that the assault weapons 

covered in section 30605 are in common use for lawful purposes. Nor has he cited

anything outside the record sufficient to make this showing. We consequently reject his 

Second Amendment challenge to section 30605. 

II

Fees and Fines

Leedy next raises a claim of ineffective assistance of counsel. Citing People v. 

Dueñas (2019) 30 Cal.App.5th 1157, he states that a trial court must account for a 

defendant’s ability to pay when imposing fees and fines. He then contends he received 

ineffective assistance because his trial counsel failed to object to the trial court’s finding 

that he had the ability to pay certain fees and fines—namely, a $1,500 restitution fine 

(§ 1202.4, subd. (b)), a $300 court facility fee (Gov. Code, § 70373, subd. (a)(1)), and a 

$400 court operations assessment fee (§ 1465.8, subd. (a)(1)). We reject his argument.

To support a claim for ineffective assistance of counsel, a defendant must (1) 

“show counsel’s performance was deficient, in that it fell below an objective standard of 

reasonableness under prevailing professional norms,” and (2) “show resulting prejudice, 

i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of 

the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) 

Although establishing ineffective assistance of counsel is often difficult, it is “particularly 

difficult” on direct appeal. (Ibid.) “On direct appeal, a conviction will be reversed for 

ineffective assistance only if (1) the record affirmatively discloses counsel had no rational 

tactical purpose for the challenged act or omission, (2) counsel was asked for a reason 

and failed to provide one, or (3) there simply could be no satisfactory explanation. All 

other claims of ineffective assistance are more appropriately resolved in a habeas corpus 

proceeding.” (Ibid.)

In this case, before imposing fees and fines, the trial court specifically said it 

considered Leedy’s ability to pay. It said: “Mr. Leedy, I want you to be aware, sir, that 
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the recommendation from Probation was to impose a $10,000 restitution fine, which is 

the maximum fine. I considered the fact that you will be serving a state prison sentence 

according to the Court’s sentencing here today. I’ve also considered the fact that you 

have been able to work, and you have been successful in obtaining employment in the 

past, so I wanted to set the restitution amount at an[] amount I felt you had the ability to 

pay, sir, but, yet, wouldn’t burden you with such a significant fine that when you are 

released from state prison that would be such a significant debt over your head, I guess is 

the best way to state it, Mr. Leedy. So I have significantly reduced fines and fees being 

imposed, because I want to help you be successful upon your release from prison, sir.”

Leedy acknowledges these facts. But he argues his trial counsel should have noted 

that at the time of his arrest, according to the probation report, he was only “earning 

income erratically through under-the-table work laying concrete.” He adds that his 

counsel should have noted that it will be harder for him to obtain this work once he is 

released from prison because of the additional felony convictions. Leedy then argues that 

had his counsel made these points and asked the court to strike the fees and stay 

execution of the restitution fine, there is a reasonable probability the trial court would 

have followed this request.

We reject his argument. The probation report, to start, says more than Leedy 

acknowledges. True, it noted his erratic income from laying concrete. But in the next 

sentence, it also noted that Leedy was employed at a restaurant around the time of his 

arrest. And Leedy said these two jobs kept him busy. Leedy’s claim here, then, that he 

only earned an erratic income from laying concrete is inaccurate—and we do not find his 

trial counsel ineffective simply because he failed to attempt to mislead the trial court. 

Even setting that aside, reasonably competent counsel could have determined that an 

objection based on the probation report’s mention of Leedy’s concrete work would have 

been futile, for the trial court already told counsel that it had read and considered the 

probation report. As case law makes clear, “[c]ounsel does not render ineffective 
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assistance by failing to make motions or objections that counsel reasonably determines 

would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) 

Turning to the adverse effect of felony convictions on job prospects, Leedy treats 

the point as so obvious that he neglects to point to any data or citation to substantiate the 

claim. He then asks us to assume that this point—though obvious—was not known by 

the trial court, so it was necessary for his counsel to inform the court. We are 

unpersuaded. The trial court, consistent with the probation report, found Leedy had 

“been able to work” and had “been successful in obtaining employment in the past,” even 

though he had “multiple prior felony convictions.” Leedy believes his trial counsel 

should have objected that obtaining employment following his release would be more 

difficult this time given his growing felony history. But his counsel could have 

reasonably concluded that an objection along these lines would only be a waste of time 

given the trial court’s comments about Leedy’s prior success in gaining employment 

despite already having a significant felony history. Under these circumstances, we 

cannot say his counsel’s conduct fell below an objective standard of reasonableness. (See 

People v. Anzalone (2006) 141 Cal.App.4th 380, 394 [“Attorneys are not required to 

make every conceivable objection”]; People v. Eckstrom (1974) 43 Cal.App.3d 996, 1003 

[attorneys are not ineffective simply because they have “not pressed every motion or 

made every possible objection”].) 

III

Clerical Error

The People raise one issue of their own: The abstract of judgment describes 

Leedy’s sentence for possessing a controlled substance for sale (count 9) as one year four 

months, one-third the low term, doubled, even though the trial court ordered him to serve 

one year four months, one-third the middle term, doubled. (See § 1170.1, subd. (a) [the 

“subordinate term for each consecutive offense shall consist of one-third of the middle 

term of imprisonment”]; see also § 1170.12, subd. (c)(1) [the term for an offense with an 
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indeterminate term is doubled when the defendant has a prior serious or felony 

conviction].) We agree this clerical error should be corrected, which Leedy does not 

dispute, and will direct the trial court to issue an amended abstract of judgment to correct 

this error. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of 

judgment to note that the sentence for count 9 is one year four months, one-third the 

middle term, doubled. The court is directed to forward a certified copy of the corrected 

abstract of judgment to the Department of Corrections and Rehabilitation.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

MAURO, Acting P. J.

 /s/

MESIWALA, J.