People v. Roberts

Filed 9/8/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A170546

v. (Contra Costa County

ELIJAH DOVELL ROBERTS, Super. Ct. No. 012202322)

Defendant and Appellant.

Elijah Dovell Roberts was convicted by plea of carrying a concealed,

loaded firearm in a vehicle in violation of Penal Code section 25400,

subdivision (a)(1) 1 and carrying a loaded firearm in a vehicle when the

firearm was not registered to him (§ 25850, subds. (a) & (c)(6)). Roberts

contends his conviction must be reversed on the ground that sections 25400

and 25850 are unconstitutional under New York State Rifle & Pistol Assn.,

Inc. v. Bruen (2022) 597 U.S. 1 [142 S.Ct. 2111] (Bruen) and United States v.

Rahimi (2024) 602 U.S. 680 [144 S.Ct. 1889] (Rahimi). We disagree and

affirm.

I. BACKGROUND

On April 13, 2021, California Highway Patrol Officer Thadeus Johnson

was driving on Interstate 680 in Concord, California. At approximately 10:30

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

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a.m., Johnson saw a Nissan Altima travelling on the interstate at a high rate

of speed. Johnson followed the Altima and eventually the Altima stopped.

Roberts, the driver of the Altima, was the only person in the car. When

pulled over, he told Johnson he did not have a driver’s license. Johnson saw

a driver’s license in the center console and asked Roberts to give him the

license. Roberts complied. Johnson examined the driver’s license and

determined it was fake. Roberts said he used the license to get into clubs.

Johnson ran the number on the driver’s license through a law

enforcement database, which yielded the name of a different man. Johnson

impounded the Altima because Roberts did not have a driver’s license, and

conducted an inventory search. As part of that search, Johnson looked inside

a black bag and found a loaded handgun and $14,000 in cash, at which point

Roberts was arrested. Johnson saw the serial number on the gun and

attempted to find the registered owner. Using the eTrace system, Johnson

determined the gun had several previous registered owners, none of whom

was Roberts.

Prior to his preliminary hearing, Roberts filed a demurrer seeking to

dismiss counts 1 and 2 on Second Amendment grounds. After the trial court

denied that motion, the district attorney filed an information with the same

two felony firearms charges and a misdemeanor charge relating to the

driver’s license (Veh. Code, § 14610, subd. (a)(1)), and Roberts pled no contest

to all the charges in the information.

Roberts filed a timely notice of appeal, and the trial court granted his

request for a certificate of probable cause to pursue the appeal.

II. DISCUSSION

Roberts argues that, under Bruen, California’s concealed carry firearm

licensing scheme at the time of his offense, codified at section 26150 (former

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§ 26150, added by Stats. 2010, ch. 711, § 6, and amended by Stats. 2023,

ch. 249, § 10, eff. Jan. 1, 2024), is facially unconstitutional, perforce rendering

unconstitutional as well section 25400, subdivision (a)(1)’s prohibition against

an unlicensed person carrying a concealed firearm in a vehicle. He further

contends that section 25850 does not satisfy the “ ‘history and tradition’ ”

prong of the constitutional test articulated in Bruen. For the reasons

explained below, we reject both arguments.

A. 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.’ ” (People v. Alexander (2023) 91 Cal.App.5th

469, 474.)

“ ‘ “A defendant challenging the constitutionality of a statute carries a

heavy burden: ‘The courts will presume a statute is constitutional unless its

unconstitutionality clearly, positively, and unmistakably appears; all

presumptions and intendments favor its validity.’ ” ’ [Citations.] Typically, a

litigant may challenge the constitutionality of a statute in two ways: on its

face or as applied.” (In re D.L. (2023) 93 Cal.App.5th 144, 156–157 (D.L.).)

“A facial challenge seeks to void the statute as a whole by showing that

‘ “no set of circumstances exists under which the [statute] would be valid,”

i.e., that the law is unconstitutional in all’ ” (D.L., supra, 93 Cal.App.5th at

p. 157; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084

[“ ‘ “[P]etitioners must demonstrate that the act’s provisions inevitably pose a

present total and fatal conflict with applicable constitutional

prohibitions” ’ ”]) or at least the “ “ ‘great majority of cases” ’ ” (In re T.F.-G.

(2023) 94 Cal.App.5th 893, 909, italics omitted). When reviewing a facial

challenge to a statute, we “consider[] only the text of the measure itself, not

its application to the particular circumstances of an individual.” (Tobe, at

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p. 1084.) In contrast, a defendant making an “as applied” challenge to a

statute “seek[s] ‘relief from a specific application of a facially valid statute or

ordinance to an individual or class of individuals who are under allegedly

impermissible present restraint or disability as a result of the manner or

circumstances in which the statute or ordinance has been applied.’ ” (D.L., at

pp. 157–158.)

“ ‘Generally speaking, when confronting a constitutional flaw in a

statute, we try to limit the solution to the problem,’ severing any ‘problematic

portions while leaving the remainder intact’ ” because an unconstitutional

provision in a statute “ ‘does not necessarily defeat or affect the validity of its

remaining provisions.’ ” (Free Enterprise Fund v. Public Company

Accounting Oversight Bd. (2010) 561 U.S. 477, 508 [130 S.Ct. 3138, 3161].) If

only a portion of the statute is unconstitutional, and that portion is severable,

courts will uphold the statute as constitutional. (People v. Mosqueda (2023)

97 Cal.App.5th 399, 414.)

B. Legal Landscape Under the Second Amendment as Construed by

the United States Supreme Court

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 District of Columbia v. Heller (2008) 554 U.S. 570, 595 [128 S.Ct.

2783, 2799], the United States Supreme Court recognized, based on “both

text and history, that the Second Amendment confer[s] an individual right to

keep and bear arms.” The Court went on to explain the right is not

“unlimited” and has never been understood to be “a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever

purpose.” (Id. at p. 626 [128 S.Ct. at p. 2816].) The Court specifically

identified as “presumptively lawful regulatory measures” “longstanding

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prohibitions on the possession of firearms by felons.” (Id. at pp. 626–627 &

fn. 26 [128 S.Ct. at pp. 2816–2817 & fn. 26].)

Then, in Bruen, the Supreme Court set forth the following framework

for deciding Second Amendment claims: “[W]hen the Second Amendment’s

plain text covers an individual’s conduct, the Constitution presumptively

protects that conduct. To justify its regulation, the government may not

simply posit that the regulation promotes an important interest. Rather, the

government must demonstrate that the regulation is consistent with this

Nation’s historical tradition of firearm regulation. Only if a firearm

regulation is consistent with this Nation’s historical tradition may a court

conclude that the individual’s conduct falls outside the Second Amendment’s

‘unqualified command.’ ” (Bruen, supra, 597 U.S. at p. 17 [142 S.Ct. at

p. 2126].)

The Court explained that “history guide[s] our consideration of modern

regulations that were unimaginable at the founding. When confronting such

present-day firearm regulations, this historical inquiry that courts must

conduct will often involve reasoning by analogy—a commonplace task for any

lawyer or judge. Like all analogical reasoning, determining whether a

historical regulation is a proper analogue for a distinctly modern firearm

regulation requires a determination of whether the two regulations are

‘relevantly similar.’ ” (Bruen, supra, 597 U.S. at pp. 28–29 [142 S.Ct. at

p. 2132].) “[A]nalogical reasoning under the Second Amendment is neither a

regulatory straightjacket nor a regulatory blank check. . . . [It] requires only

that the government identify a well-established and representative historical

analogue, not a historical twin. So even if a modern-day regulation is not a

dead ringer for historical precursors, it still may be analogous enough to pass

constitutional muster.” (Id. at p. 30 [142 S.Ct. at p. 2133], original italics.)

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More recently, in Rahimi, the Court cautioned that its Second

Amendment “precedents were not meant to suggest a law trapped in amber.”

(Rahimi, supra, 602 U.S. 680 at pp. 691, 700 [144 S.Ct. at pp. 1897, 1902–

1903] [holding a federal statute prohibiting a person subject to a domestic

violence restraining order from possessing a firearm withstands a Second

Amendment challenge and rejecting argument that the historical analogues

were insufficiently similar “to place the [federal law] in our historical

tradition”].) The Court explained, “[T]he appropriate analysis involves

considering whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition. [Citation.] A court must

ascertain whether the new law is ‘relevantly similar’ to laws that our

tradition is understood to permit, ‘apply[ing] faithfully the balance struck by

the founding generation to modern circumstances.’ ” (Rahimi, at p. 692 [144

S.Ct. at p. 1898].)

C. Challenged California Licensing Scheme

California law prohibits carrying a firearm in public, whether the

weapon is concealed or carried openly, and whether it is loaded or unloaded.

(§§ 25400, subd. (a) [concealed firearm in vehicle or on person] 2, 25850,

2 Until 2024, section 25610 stated, “(a) Section 25400 shall not be

construed to prohibit any citizen of the United States over the age of 18 years

who resides or is temporarily within this state, and who is not prohibited by

state or federal law from possessing, receiving, owning, or purchasing a

firearm, from transporting or carrying any pistol, revolver, or other firearm

capable of being concealed upon the person, provided that the following

applies to the firearm: [¶] (1) The firearm is within a motor vehicle and it is

locked in the vehicle’s trunk or in a locked container in the vehicle. [¶] (2) The

firearm is carried by the person directly to or from any motor vehicle for any

lawful purpose and, while carrying the firearm, the firearm is contained

within a locked container. [¶] (b) The provisions of this section do not prohibit

or limit the otherwise lawful carrying or transportation of any pistol,

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subd. (a) [loaded firearm in public], 26350, subd. (a) [unloaded and exposed

handgun in public].) There are numerous statutory exceptions to these

prohibitions, but if a law-abiding California citizen does not qualify for one of

the exceptions, generally the citizen’s only means for lawfully carrying a

handgun in public for self-defense is to obtain a license to carry a concealed

handgun under section 26150.

That brings us to the specific statutes under which Roberts was

convicted. The prohibitions against carrying a concealed firearm in a vehicle

(§ 25400, subd. (a)(1)) and public carrying of a loaded firearm registered to

another person (§ 25850, subds. (a) & (c)(6)) do not apply to a person licensed

to carry a concealed handgun (§§ 25655, 26010 3). Sections 26150 and 26155

are among the exceptions to the criminal prohibitions on the public carrying

of firearms in California. These statutes effectively conditioned Roberts’s

revolver, or other firearm capable of being concealed upon the person in

accordance with the provisions listed in [s]ection 16580.” (Former § 25610,

added by Stats. 2010, ch. 711, § 6, later amended by Stats. 2023, ch. 249, § 8,

eff. Jan. 1, 2024.)

Effective January 1, 2024, pursuant to Senate Bill No. 2 (2023–2024

Reg. Sess.), the Legislature amended section 25610 by making the following

substantive changes: Limiting the transportation of the concealed weapon to

the purposes set forth in sections 25510 to 25595; clarifying that either

former subdivision (a)(1) or former subdivision (a)(2) would trigger the

exemption, and both conditions need not be present; adding a requirement

that the firearm be unloaded; removing the “for any lawful purpose”

requirement in former subdivision (a)(2); and removing former subdivision

(b). The revisions to section 25610 do not affect the issues on appeal here.

3 Section 26150 covers the issuance of concealed carry licenses by a

county sheriff. (§ 26150, subd. (a).) Section 26155 covers the issuance of

concealed carry licenses by the chief of police. (§ 26155, subd. (a).) Roberts

focuses his claim of facial invalidity on former section 26150, and we limit our

discussion to that provision.

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right to carry firearms in the concealed manner that he admittedly did on

obtaining a license exempting him from criminal sanctions for that conduct.

Sections 26150 and 26155 set forth California’s requirements for

obtaining a license to carry a concealed firearm. At the time of Roberts’s

offense, former section 26150 required an applicant for a concealed carry

license to meet four requirements: They must (1) be “of good moral

character”; (2) provide “[g]ood cause . . . for issuance of the license”; (3) be a

resident of the county in which they are seeking the license; and (4) complete

a firearms training course. (Former § 26150, subd. (a), added by Stats. 2010,

ch. 711, § 6, later amended by Stats. 2023, ch. 249, § 10, eff. Jan. 1, 2024

(former section 26150(a)).) In 2023, after the Supreme Court issued its

decision in Bruen, the Legislature amended former section 26150, subdivision

(a) and, among other changes, removed the “[g]ood cause” requirement.

(Stats. 2023, ch. 249, § 10.) 4

Roberts contends that the prohibitions against carrying a concealed

weapon in a vehicle (§ 25400, subd. (a)(1)) and against public carrying of a

firearm registered to a third party (§ 25850, subds. (a) & (c)(6)) are

necessarily invalid because the licensing regime on which they rest (§§ 26150,

26155) is facially unconstitutional under the Second Amendment. The heart

4 Effective January 1, 2024, pursuant to Senate Bill No. 2 (2023–2024

Reg. Sess.), the Legislature replaced the “good cause” requirement with a

requirement that the applicant be and prove that they are at least 21 years of

age; replaced the “good moral character” requirement with a requirement

that the applicant meet the standards set forth in section 26202, which

governs the designation of persons disqualified from obtaining a concealed-

carry license; replaced the “may issue” language with “shall issue”; added

guidance on the evidence needed to establish residency in the county; and

added the requirement that the applicant be the registered owner of the

firearm for which they are seeking the concealed-carry license. (Stats. 2023,

ch. 249, § 10.)

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of his argument is that this licensing scheme cannot pass muster under the

Second Amendment because it allowed discretionary license denial without a

finding that the license applicant is dangerous.

D. Analysis

Two published California cases reject Second Amendment challenges to

statutes that limit firearm possession without a prerequisite finding of a

defendant’s criminality or dangerousness. (See, e.g., D.L., supra, 93

Cal.App.5th at pp. 162–167 [rejecting facial challenge to § 25850 in light of

Bruen]; People v. Bey (2025) 108 Cal.App.5th 144, 165–167 [same; post-

Rahimi].) Neither of these cases squarely addresses the Second Amendment

issue Roberts presents. Because, immediately after Bruen was decided, 5 the

Attorney General conceded that the “good cause” component of the licensing

scheme that exempts carrying concealed weapons in violation of

section 25850, subdivision (a) is unconstitutional under Bruen, these courts

held the good cause requirement to be severable from the remainder of the

licensing scheme, 6 and then, evaluating what was left, held that section

5 “Within a day of the Bruen decision, the Attorney General instructed

firearm-permitting agencies that proof of ‘good cause’ is no longer required in

order for an applicant to receive a concealed carry license.” (See D.L., supra,

93 Cal.App.5th at p. 148.)

6 This case presents no severability issue. Without any attack on the

pre-2023 licensing regime as it stood prior to the deletion of the “good cause”

requirement by legislative amendment and without attacking any other

aspect of the licensing regime under sections 26150 and 26155, Roberts dives

straight into the merits of his Second Amendment attack on California’s

licensing scheme. The Attorney General argues severability at length in his

respondent’s brief, drawing no reply from Roberts on this issue. Roberts does

not make any attack on the licensing scheme based on the “good cause”

requirement or any ground other than that the governing scheme does not

require a finding of dangerousness.

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25850, subdivision (a) passes muster under the Second Amendment. We

arrive at the same conclusion in this case.

Roberts claims D.L and Bey were wrongly decided because they “fail to

properly evaluate whether a restriction on the fundamental right of

Americans to possess firearms comports with the history and tradition of the

United States.” We disagree and embrace the Second Amendment holdings

in those cases, but here we go a step further. We hold that, since licensure is

a reasonable mode of screening that aids the state in determining who is a

felon, and thus automatically ineligible for a license, it does not violate the

Second Amendment to require licensure as a prerequisite to possessing a

firearm.

To understand why, and specifically why this conclusion is consistent

with history and tradition at the time the Second Amendment was adopted,

we begin with People v. Anderson (2024) 104 Cal.App.5th 577. After

thoroughly canvassing the pertinent historical record, the Anderson panel

explained that accepted practices at the time of the founding “show the

generation that adopted the Second Amendment understood the right it was

enshrining in the Constitution to be limited. The right to arms familiar to

[the founders] allowed for both categorical disarmament of groups that the

legislature assessed as threatening to the community, and individual

disarmament as a consequence for criminal conduct.” (Id. at p. 598.) Beyond

that, we need not reiterate or restate the historical analysis in Anderson.

(See Anderson, at pp. 589–595.) We agree with it, as did the Bey court. (See

Bey, supra, 108 Cal.App.5th at pp. 161–162.) 7

7 Although we reject Roberts’s suggestion that D.L. and Bey were

wrongly decided, we view Bey, as a post-Rahimi decision, as the more

pertinent of these two cases.

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But the precise facial invalidity argument Roberts makes here was not

made in Bey or Anderson, presumably because the defendants in those cases

had been convicted of various felonies. The main issue those courts

addressed (having found the “good cause” requirement in former section

26150, subdivision (a), to be severable from the rest of the California

licensing scheme), was whether, consistent with the Second Amendment,

those defendants—having been convicted of multiple felonies—“could have

been disarmed as punishment for at least one of these crimes” at the time of

the founding. Upholding the statutes of conviction in those cases, the Bey

and Anderson courts answered that question yes.

In this case, the record is silent whether, at the time of the offenses at

issue here, Roberts had been convicted of a felony. For all we know, he was a

law-abiding citizen up to that point. But since this is a facial constitutional

challenge, and taking as our premise that California can criminally proscribe

convicted felons from carrying concealed firearms—as Bey and Anderson

correctly held—we build on that premise and hold that it can also require

those who wish to carry concealed weapons publicly to obtain a license as a

prerequisite, without a finding of dangerousness.

Bruen acknowledged that background checks and firearms safety

courses will pass muster as prophylactic measures in the face of Second

Amendment challenge, provided they are based on “ ‘narrow, objective, and

definite standards’ ”. . . . (Bruen, supra, 597 U.S. at p. 38, fn. 9 [142 S.Ct. at

p. 2138].) Roberts makes no argument that the type of narrow, objective and

definite licensing standards envisioned in Bruen are lacking here. Instead,

he advances the broad claim that no licensing requirement can be valid under

the Second Amendment unless license denials are limited to persons found to

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be dangerous. We cannot agree. Roberts’s dangerousness argument

overreads Bruen, and nothing in Rahimi goes that far.

“Unlike the regulation struck down in Bruen,” the licensing regulations

in this case do “not broadly restrict arms use by the public generally.”

(Rahimi, supra, 602 U.S. at p. 698 [144 S.Ct. at p. 1901].) Because firearms

licensure guided by appropriate standards is a reasonable means of screening

to see whether anyone applying for a concealed carry permit is a felon—and

thus is not a “ ‘law-abiding, responsible citizen[]’ ” (Bruen, supra, 597 U.S. at

p. 38, fn. 9 [142 S.Ct. at p. 2138])—we reject Roberts’s contention that the

licensing scheme at issue here is facially invalid.

III. DISPOSITION

Affirmed.

STREETER, J.

WE CONCUR:

BROWN, P. J.

CLAY, J. *

* Judge of the Alameda Superior Court, assigned by the Chief Justice

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

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Trial Court: Superior Court of California, County of Contra Costa

Trial Judge: Hon. Charles B. Burch

Counsel: Micah Reyner, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Assistant Attorney General, Jeffrey M. Laurence,

Assistant Attorney General, Eric D. Share and Katie L.

Stowe, Deputy Attorneys General for Plaintiff and

Respondent.

People v. Roberts – A170546