The opinion
Filed 4/28/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C095234
Plaintiff and Respondent, (Super. Ct. No. MAN-CR-FE-
2020-0000637)
v.
ALEX ANDY BOCANEGRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, Patrick J.
Smalling, Judge. Affirmed and remanded for resentencing.
Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and
Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part I of the discussion.
1
Defendant Alex Andy Bocanegra and Vernon R. were very close friends for
decades. However, one Christmas, defendant, who was married, slept with Vernon R.’s
girlfriend. The next year, Vernon R., by his account, slept with defendant’s wife, or, by
her account, forcefully tried to. In either case, by this point, the friendship between
defendant and Vernon R. was “dead.” Rather than allowing this saga to end, on the night
of January 12, 2020, defendant drove from his home in San Jose to Vernon R.’s home in
Manteca armed with three firearms including an AR-15 style rifle. Defendant broke a
front window and fired shots into the house as Vernon R. scrambled through the house
and dove out a bedroom window to get away.
A jury found defendant not guilty of attempted murder, but found him guilty of
assault with a firearm, possession of an assault weapon, discharging a firearm in a grossly
negligent manner, and causing a concealed firearm to be carried in a vehicle while an
occupant, and found true an allegation that, in committing assault with a firearm,
defendant personally used a firearm in the commission of a felony.
On appeal, defendant asserts (1) the matter must be remanded for resentencing
based on changes to Penal Code section 654 1 made by Assembly Bill No. 518 (2021-
2022 Reg. Sess.) (Assembly Bill No. 518), and (2) his conviction of possession of an
assault weapon must be reversed because section 30605 is unconstitutional under the
Second Amendment and the United States Supreme Court’s recent decision in New York
State Rifle & Pistol Association, Inc. v. Bruen (2022) ___U.S.___ [213 L.Ed.2d 387]
(Bruen).
Agreeing with defendant on his first point, we shall remand for resentencing.
Otherwise, we affirm defendant’s convictions. Consistent with prior California case law
addressing its statutory predecessor, we conclude section 30605 does not violate the
1 Further undesignated statutory references are to the Penal Code.
2
Second Amendment as construed by the United States Supreme Court in District of
Columbia v. Heller (2008) 554 U.S. 570 (Heller).
BACKGROUND
An information charged defendant with attempted premeditated murder (§§ 664,
187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), possession
of an assault weapon (§ 30605, subd. (a); count 3), discharging a firearm in a grossly
negligent manner (§ 246.3, subd. (a); count 4), and causing a concealed firearm to be
carried in a vehicle while an occupant (§ 25400, subd. (a)(3); count 5). In connection
with count 1, the information alleged defendant personally discharged a firearm.
(§ 12022.53, subd. (c).) In connection with counts 1 and 2, the information alleged
defendant personally used a firearm in the commission of a felony. (§ 12022.5, subd.
(a).)
The Prosecution Case
Vernon R. and defendant had been friends for more than 20 years, since they were
teenagers. In 2018, Vernon R., his girlfriend, and their five kids went to defendant’s
house in San Jose to celebrate Christmas with defendant and his family. At some point
while they were there, defendant slept with Vernon R.’s girlfriend.
Around Thanksgiving 2019, defendant confessed to Vernon R. and told him the
affair with Vernon R.’s girlfriend was a “one-time thing.” By this time, Vernon R. and
his girlfriend had broken up. However, Vernon R. talked to her, and “more stuff started
coming out.” She told Vernon R. she had been with defendant “a few more times
throughout the year.”
Vernon R. contacted defendant’s wife to tell her about the affair. Thereafter,
defendant’s wife kicked defendant out of the house, and he went to stay with family.
Vernon R. and defendant’s wife had many conversations about the affair over the
following days.
3
On or about December 4, 2019, defendant’s wife met Vernon R. at his tattoo shop
because she wanted Vernon R. to give her a tattoo. However, after meeting at the tattoo
shop, they instead went to Vernon R.’s house in Manteca where, according to Vernon R.,
they slept together. Defendant’s wife then went back home to San Jose.
At some point, defendant called Vernon R. and asked Vernon R. if he had slept
with his wife. Vernon R. admitted he had. At that point, the friendship “was dead.”
On January 12, 2020, at approximately 1:45 a.m., Vernon R. was asleep in his
room. His kids were not home, and he was alone in the house. He awoke to the sound of
breaking glass. After he got up, he heard a window break in the kids’ room. Looking
into that room, he saw the curtains moving. He then saw a flashlight pointed at him
through a hole in the window. The person who was holding the flashlight also appeared
to be holding something else. Vernon R. then heard the clicking of a gun. He heard at
least a couple of clicks.
Vernon R. ran to the front door. He opened the door, saw that his back gate was
open, and yelled, “Get out of my backyard.” A person holding a gun started walking
towards him. It looked to Vernon R. like the person was cocking the gun, which
Vernon R. described as a chrome revolver. Vernon R. slammed the door shut and locked
it. Then he heard his front room window “get shot out.”
Vernon R. ran towards his bedroom as more shots rang out. He dove through the
window into the backyard. Outside, Vernon R. ran around to the street and took cover
behind some cars. Vernon R. watched the gunman look through the front window into
Vernon R.’s house. The person then just walked off. Vernon R. flagged down a police
car. He pointed to the person walking away and told police the person had just shot at
him.
Manteca Police Officer Carlos Gutierrez saw a silver Infinity and positioned his
patrol car in front of it. The Infinity attempted to move away in reverse, but Gutierrez
drew his firearm and stopped the car. Defendant was the driver. Gutierrez observed
4
fresh blood from small cuts on defendant’s hands. Gutierrez thought the cuts looked like
they resulted from broken glass.
Defendant told police he did not have any weapons on his person, but that “he had
protective guns in his vehicle.” Officer Gutierrez saw a silver revolver and an AR-15
style rifle on the front passenger-side floor of defendant’s car. On the back-seat floor,
there was a box containing a “1911-style handgun.”
When Officer Heriberto Cardenas inspected the AR-15 rifle, he saw a red drop by
the trigger guard or the bottom of the receiver that looked like blood. The rifle had a live
round in the barrel and 12 live rounds in the magazine. Police had difficulty ejecting the
round in the chamber. It appeared to be stuck or jammed. Cardenas also inspected the
revolver and discovered it contained three spent shell casings and that two of the
cylinders were empty. He also noticed a red drop that looked like blood on the gun’s
trigger guard. Lastly, Cardenas inspected the Rock Island Armory 1911 .45-caliber
semiautomatic pistol that had been in a box on the floor of the back seat. There was no
magazine in the gun, but Cardenas found a magazine containing seven live rounds in the
car’s center console.
Officer Salvador Montero inspected the AR-15 rifle. It had a flash suppressor at
the end of the barrel, a pistol grip protruding from the bottom portion of the action, a
magazine release button, and a telescoping buttstock. A pistol grip allows the user “to
better manipulate the weapon’s action, whether it be placing the weapon on fire safe,
manipulating the trigger, and manipulating the magazine release button.” A flash
suppressor suppresses the flash from the weapon when it is fired. Depressing the
magazine release button causes the magazine to fall out of the weapon, allowing for
faster unloading and reloading. A telescoping buttstock increases or decreases the length
of the weapon allowing for variability in its stability and compactness. Montero testified
that a firearm might make a clicking sound if it malfunctions or if it is empty.
5
Upon returning to his house, Vernon R. realized his power was out. Outside, he
discovered the breaker box door was open. Police observing the breaker switches
realized the power had been shut off. Inside the house, Vernon R. discovered bullet holes
in the walls, in the closet, and in his couch. Police found a bullet and a bullet fragment.
Later, when Vernon R. was driving to the police station, he saw defendant’s
Infinity in the street with all the doors open. At that moment Vernon R. “knew it was”
defendant. Months later, Vernon R.’s son found a bullet underneath bunk beds.
Vernon R. gave the bullet to police.
Officer Montero interviewed defendant at the police station and the prosecution
played a recording of the interview for the jury. During the interview, defendant
acknowledged he drove to Vernon R.’s house in Manteca and that he had his guns with
him. He said he wanted to get Vernon R. to stop calling his wife a “whore.” Defendant
said he knocked on the door and tried to get Vernon R. to talk to him. Defendant initially
told Montero he “didn’t shoot at all,” but eventually he admitted he broke Vernon R.’s
window with his gun and shot two rounds into the house. However, defendant told
Montero he shot “down” toward the ground and that he did not actually shoot at
Vernon R.
The Defense Case
Defendant’s wife testified that, in 2019, Vernon R. called her at work and told her
defendant had an affair with Vernon R.’s girlfriend in 2018. Defendant’s wife confronted
defendant and he admitted what had happened. Defendant’s wife kicked defendant out of
the house.
Defendant’s wife went to see Vernon R. on December 4, 2019. At Vernon R.’s
house, they drank until they emptied the bottle. Defendant’s wife was drunk. Vernon R.
started to kiss her but she turned away. Vernon R. kept on making advances and
defendant’s wife kept trying to make him stop. He put his hand up her shirt, rubbed her
legs, tried to unbutton her pants, and revealed his penis. Defendant’s wife managed to
6
push Vernon R. away, and eventually, he stopped his advances and defendant’s wife
passed out. Later, she woke up and went home.
About two weeks later, defendant and his wife agreed to work things out and he
came back home. Vernon R. started to post on social media that defendant’s wife was a
“whore and a slut and . . . was just out there trying to sleep with everyone . . . .”
Defendant told his wife he intended to go talk with Vernon R. and ask him to stop posting
insults on social media. Thus, she knew that, on January 12, 2020, defendant was going
to talk to Vernon R. and tell him to stop posting insults on social media. She thought
they were going to be able to have a cordial conversation.
Verdicts and Sentencing
The jury found defendant not guilty on count 1, attempted premeditated murder,
and not guilty of the lesser included offense of attempted voluntary manslaughter. The
jury found defendant guilty on counts 2 through 5. The jury found true the enhancement
allegation that, in connection with count 2, defendant personally used a firearm in the
commission of a felony. (§ 12022.5, subd. (a).)
The trial court sentenced defendant to an aggregate term of seven years and eight
months. The court sentenced defendant to the midterm of three years on count 2 plus the
midterm of four years for the section 12022.5 subdivision (a) enhancement, eight months,
one-third of the midterm, on count 3, and one year on count 5 to run concurrently with
the sentence imposed on count 2. 2
2 As to count 4, the trial court stated: “governed by . . . [section] 654, the Court
does not impose any additional time.” Thus, the trial court did not impose a sentence on
count 4 and stay execution of that sentence pursuant to section 654. This was in error.
“[W]hen a court determines that a conviction falls within the meaning of section 654, it is
necessary to impose sentence but to stay the execution of the duplicative sentence . . . .”
(People v. Duff (2010) 50 Cal.4th 787, 796; see People v. Alford (2010) 180 Cal.App.4th
1463, 1469.) We need not remedy this error, however, because we are remanding for
resentencing.
7
DISCUSSION
I
Assembly Bill No. 518
At the time of defendant’s sentencing, former section 654, subdivision (a) provided, in
part: “[a]n act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, former subd. (a), italics added.) As amended by Assembly Bill
No. 518, which went into effect January 1, 2022, section 654 now provides, in part: “[a]n
act or omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a), italics added.) Thus, as
amended, where section 654 applies, that section now authorizes trial courts to exercise
their discretion in choosing the count for which punishment will be imposed and
executed rather than requiring the longest potential term of imprisonment.
Defendant asserts we must remand for resentencing so the trial court may exercise
its discretion and choose, between counts 2 and 4, which sentence to impose and execute
and which to impose and stay pursuant to section 654. Defendant asserts Assembly Bill
No. 518 applies retroactively to his case. According to defendant, because the trial court
could not have been aware of its newly authorized discretion at the time of sentencing,
his sentencing was not made in the exercise of the trial court’s informed discretion.
Defendant further asserts remand would not be an idle act because the record does not
conclusively indicate whether the trial court would have exercised its discretion to
impose and execute sentence on count 2 or 4.
The Attorney General agrees Assembly Bill No. 518 applies retroactively to
defendant’s case. However, the Attorney General further contends remand would be an
idle act. The Attorney General relies on the fact that, if the trial court exercised its
8
discretion in the manner contemplated by defendant and stayed the longer term, the
resulting sentence would be three years. However, the trial court at sentencing rejected
as insufficient a low term of five years on count 2 (consisting of the low term of two
years on count 2 plus the low term of three years on the firearm enhancement). Thus, as
the Attorney General articulates it: “[t]here is no reason to give the trial court a chance to
impose a three-year sentence when it has stated clearly and quite firmly that a five-year
sentence would be inadequate.”
We agree with the parties that, under the principles of In re Estrada (1965)
63 Cal.2d 740, Assembly Bill No. 518 applies retroactively to defendants, like defendant
here, whose convictions were not yet final when the law became effective on January 1,
2022. (People v. White (2022) 86 Cal.App.5th 1229, 1236; accord, People v. Mani
(2022) 74 Cal.App.5th 343, 379.)
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.) An abuse of discretion occurs where a court is unaware of the scope of its
discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 378 [“abuse of discretion
occurs where the trial court was not ‘aware of its discretion’ to dismiss”].) Where a court
imposes sentence unaware of the scope of its discretion, “ ‘the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would
have reached the same conclusion ‘even if it had been aware that it had such
discretion.’ ” (Gutierrez, at p. 1391; accord, People v. McDaniels (2018) 22 Cal.App.5th
420, 425 [“if ‘ “the record shows that the trial court would not have exercised its
discretion even if it believed it could do so, then remand would be an idle act and is not
required” ’ ”].) Therefore, we turn to the record of sentencing to determine whether
remand would be an idle act.
In initially pronouncing the tentative sentence, which it would ultimately adopt,
the trial court cited aggravating circumstances related to the crimes including that the
9
crimes involved great violence, risk of great bodily harm, the threat of great bodily harm,
or other acts disclosing a high degree of cruelty, viciousness, or callousness. (Cal. Rules
of Court, rule 4.421(a)(1).) 3 The trial court noted defendant fired a firearm three times
into Vernon R.’s home, and possibly at Vernon R. Defendant was armed with and used a
firearm during the commission of the offenses. (Rule 4.421(a)(2).) When the police
stopped defendant, he had two handguns and an AR-15 style rifle. The court stated
Vernon R. was particularly vulnerable in that he was unarmed and sleeping at the time.
(Rule 4.421(a)(3).) The court stated the manner in which defendant committed the
crimes indicated planning, sophistication, or professionalism. (Rule 4.421(a)(8).)
Defendant “drove from San Jose to Manteca in the middle of the night, was loaded for
bear with three firearms.” Additionally, the power to Vernon R.’s house was cut, giving
rise to the reasonable inference defendant did so to “gain additional advantage against
[Vernon R.] as he confronted him in the darkness.” Defendant also took advantage of a
position of trust as a former friend and as someone familiar with Vernon R.’s home.
(Rule 4.421(a)(11).)
The trial court also considered aggravating circumstances relating to defendant,
including that he had engaged in violent conduct indicating he was a serious danger to
society. (Rule 4.421(b)(1).) He had a prior conviction as an adult and sustained petitions
as a juvenile which, although not numerous, were increasing in seriousness. (Rule
4.421(b)(2).)
In mitigation, the trial court noted Vernon R. was an initiator of, willing
participant in, or an aggressor or provoker of the incident if only insofar as he contributed
to a continuation of tensions. (Rule 4.423(a)(2).) For similar reasons, the court found the
crime was committed because of unusual circumstances, such as great provocation, that
3 Further undesignated citations to rules are to the California Rules of Court.
10
were unlikely to recur. (Rule 4.423(a)(3).) The court stated defendant acknowledged
wrongdoing before arrest or at an early stage in the proceedings. (Rule 4.423(b)(8).) The
court specified defendant did admit to firing his handgun into Vernon R.’s home,
although he also insisted he fired into the ground which, according to the court, “is
clearly not what happened.” The court also noted defendant’s prior performance on
probation or parole had been satisfactory. (Rule 4.423(b)(15).) Additionally, the court
reviewed defendant’s letter of apology to Vernon R.
Defense counsel advocated for a low term sentence. The prosecutor responded
that this was not a low term case, the evidence spoke for itself, and defendant shot a gun
multiple times into Vernon R.’s home.
The trial court stated it agreed with the prosecution. The court stated it did not
believe defendant posed any future risks. It further stated defendant was tested and he
“failed in this moment miserably.” The court stated defendant was “raised better” and
observed he had “a community of people that care deeply about you.” The court also
agreed with the prosecutor that Vernon R.’s home was a duplex and “[b]ullets go through
walls,” suggesting someone other than Vernon R. could have been shot. The court stated:
“[T]here has to be consequences for this kind of behavior. The consequences are not
insignificant, they just are not. It’s not a low-term case, I know that you may have been
hopeful and wishing and praying on this point, I respect that, but it’s not. All things
being equal, it’s not.” The court then imposed sentence as set forth ante. 4
On this record, we cannot conclude that the trial court would have reached the
same sentencing conclusions had it been aware of the newly authorized discretion under
section 654 as amended by Assembly Bill No. 518. It is true, as the Attorney General
4 As the Attorney General notes, at sentencing, defendant did not request that the
trial court dismiss the section 12022.5 firearm enhancement. (See generally §§ 12022.5,
subd. (c), 1385.)
11
emphasizes, that the trial court did state this was not a low term case. However, the court
also emphasized a number of mitigating circumstances, including, among others, that
defendant acknowledged wrongdoing. Additionally, the court indicated it had considered
28 letters written in support of defendant. Nor did the court impose the maximum
sentence or indicate defendant should be incarcerated for the lengthiest possible term.
The court rejected the prosecution’s request that it sentence defendant to a maximum
term of 15 years and eight months. Moreover, we note California’s sentencing laws have
continued to evolve, making it ever more difficult for reviewing courts to determine with
requisite certainty that the record clearly indicates what the sentencing court would have
done had it been aware of the scope of its discretion. We also note that, at resentencing,
the sentencing court would be entitled to consider evidence of defendant’s “good and bad
postsentencing conduct in prison.” (People v. Yanaga (2020) 58 Cal.App.5th 619, 627-
628 [at resentencing to consider whether to strike a firearm enhancement, the sentencing
court may consider the defendant’s postsentencing conduct while incarcerated].)
We cannot conclude the “record in this case demonstrates with unusual clarity that
remand would be an idle act.” (People v. Flores (2020) 9 Cal.5th 371, 432.) Because we
cannot conclude the trial court would have made the same sentencing choices had it been
aware of its newly authorized discretion under section 654 as amended by Assembly Bill
No. 518, we shall remand for full resentencing. (People v. Valenzuela (2019) 7 Cal.5th
415, 424-425 [“full resentencing rule allows a court to revisit all prior sentencing
decisions when resentencing a defendant”], citing People v. Buycks (2018) 5 Cal.5th 857,
893 & People v. Navarro (2007) 40 Cal.4th 668, 681.)
II
Section 30605
A. The Parties Contentions
Defendant asserts his conviction on count 3 for possession of an assault weapon
must be reversed because section 30605 violates his Second Amendment right to bear
12
arms. According to defendant, section 30605 “does not pass the simplified historical
test” dictated by the United States Supreme Court in Bruen, supra, ___U.S. ___
[213 L.Ed.2d 387].
The Attorney General disagrees. Among other things, the Attorney General
asserts that two pre-Bruen California cases that upheld the statutory predecessor to
section 30605 remain good law.
We agree with the Attorney General and conclude section 30605 does not violate
the Second Amendment as construed by Heller, supra, 554 U.S. 570.
B. The Second Amendment and Section 30605
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 “Second Amendment right is fully applicable to the States.”
(McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742, 750 (McDonald); see id. at
p. 791 [“the Due Process Clause of the Fourteenth Amendment incorporates the Second
Amendment right recognized in Heller”].)
The statute defendant challenges here, section 30605, provides, in pertinent part:
“Any person who, within this state, possesses any assault weapon, except as provided in
this chapter, shall be punished by imprisonment in a county jail for a period not
exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”
(§ 30605, subd. (a).)
Section 30515, subdivision (a) contains a number of definitions of “assault
weapon.” These definitions describe weapons with particular features that enhance the
lethality of the weapons. Representative of these definitions, and relevant here, the
definition of “assault weapon” includes: “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 launcher. [¶]
13
(E) A flash suppressor. [¶] (F) A forward pistol grip.” (§ 30515, subd. (a)(1).)
Additionally, section 30510 further defines “assault weapon” with a list of specified
semiautomatic firearms identified by make, model, and/or series.
In enacting the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989,
ch. 19, § 3) (AWCA), including the prohibition on possession of assault weapons now
found at section 30605, the Legislature stated, originally at former section 12275.5 and
now in section 30505: “The Legislature hereby finds and declares that the proliferation
and use of assault weapons poses a threat to the health, safety, and security of all citizens
of this state. The Legislature has restricted the assault weapons specified in Section
30510 based upon finding that each firearm has such a high rate of fire and capacity for
firepower that its function as a legitimate sports or recreational firearm is substantially
outweighed by the danger that it can be used to kill and injure human beings. It is the
intent of the Legislature in enacting this chapter to place restrictions on the use of assault
weapons and to establish a registration and permit procedure for their lawful sale and
possession. It is not, however, the intent of the Legislature by this chapter to place
restrictions on the use of those weapons which are primarily designed and intended for
hunting, target practice, or other legitimate sports or recreational activities.” (§ 30505,
subd. (a); see Kasler v. Lockyer (2000) 23 Cal.4th 472, 482-488 (Kasler) [discussing
extensively the Legislature’s intent in enacting the AWCA].)
C. District of Columbia v. Heller
In Heller, the United States Supreme Court held that the District of Columbia’s
“ban on handgun possession in the home violates the Second Amendment, as does its
prohibition against rendering any lawful firearm in the home operable for the purpose of
immediate self-defense.” (Heller, supra, 554 U.S. at p. 635.) According to the Supreme
Court, “the inherent right of self-defense has been central to the Second Amendment
right.” (Id. at p. 628.) The “core lawful purpose” of the Second Amendment is self-
defense. (Id. at p. 630.) As restated in Bruen, “[i]n Heller and McDonald, we held that
14
the Second and Fourteenth Amendments protect an individual right to keep and bear arms
for self-defense.” (Bruen, supra, ___U.S. at p.___ [213 L.Ed.2d at p. 405].) And, as
restated elsewhere in Bruen, “[a]s we stated in Heller and repeated in McDonald,
‘individual self-defense is “the central component” of the Second Amendment right.’ ”
(Id. at p.___ [ 213 L.Ed.2d at p. 413].)
Crucially, the right to keep and bear arms is not unlimited. (Heller, supra,
554 U.S. at p. 595.) However, the Heller majority concluded the prefatory clause in the
Second Amendment — “A well regulated Militia, being necessary to the security of a
free State” — was not a limitation on the individual right, but rather announced the
purpose for which the right was enshrined in the Bill of Rights. (Id. at p. 599.) “The
prefatory clause does not suggest that preserving the militia was the only reason
Americans valued the ancient right; most undoubtedly thought it even more important for
self-defense and hunting. But the threat that the new Federal Government would destroy
the citizens’ militia by taking away their arms was the reason that right — unlike some
other English rights — was codified in a written Constitution.” (Ibid.)
As stated, the right recognized in the Second Amendment is not unlimited.
(Heller, supra, 554 U.S. at pp. 595, 626.) The Second Amendment right to bear arms is
“not a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” (Id. at p. 626.)
On this point, the Supreme Court in Heller clarified that, in United States v. Miller
(1939) 307 U.S. 174 (Miller), the basis for the court’s conclusion that the Second
Amendment did not apply to the 12-gauge short-barrel shotgun at issue in that case “was
not that the defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’ but for
‘nonmilitary use,’ [citation]. Rather, it was that the type of weapon at issue was not
eligible for Second Amendment protection: ‘In the absence of any evidence tending to
show that the possession or use of a [short-barreled shotgun] at this time has some
reasonable relationship to the preservation or efficiency of a well regulated militia, we
15
cannot say that the Second Amendment guarantees the right to keep and bear such an
instrument.’ ” (Heller, supra, 554 U.S. at p. 622, quoting Miller, at p. 178.) The Heller
majority further stated that “Miller stands only for the proposition that the Second
Amendment right, whatever its nature, extends only to certain types of weapons.”
(Heller, at p. 623.)
The majority in Heller also considered certain language in the Miller opinion that
addressed whether a short-barreled shotgun was “any part of the ordinary military
equipment.” (Miller, supra, 307 U.S. at p. 178.) Placed in proper context, the majority in
Heller stated that it read Miller “to say only that the Second Amendment 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, italics added.) The
majority in Heller continued: “Miller said, as we have explained, that the sorts of
weapons protected were those ‘in common use at the time.’ [Citation.] We think that
limitation is fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’ ” (Id. at p. 627.)
As to this historical tradition of prohibiting dangerous and unusual weapons, the
Heller majority cited to a number of venerated authorities spanning roughly a century.
(Heller, supra, 554 U.S. at p. 627.) Blackstone’s Commentaries stated that the offense of
riding or going armed with dangerous or unusual weapons was a crime against the public
peace. (4 Blackstone, Commentaries 148-149.) The Honourable James Wilson,
discussing affrays — crimes against the personal safety of the citizens —stated that, “[i]n
some cases, there may be an affray, where there is no actual violence; as where a man
arms himself with dangerous and unusual weapons, in such a manner, as will naturally
diffuse a terrour among the people.” (Wilson, Works of the Honourable James Wilson
(1804) p. 79, fn. omitted.) Also discussing affrays, John A. Dunlap in 1815 stated that it
is “said to be an affray, at common law, for a man to arm himself with dangerous and
unusual weapons, in such manner as will naturally cause terror to the people.” (Dunlap
16
The New-York Justice (1815) p. 8.) In 1822, Charles Humphreys stated: “Riding or
going armed with dangerous or unusual weapons, is a crime against the public peace, by
terrifying the people of the land . . . .” (Humphreys, Compendium of the Common Law
in Force in Kentucky (1822) p. 482.) Humphreys noted that “it should be remembered,
that in this country the constitution guaranties to all persons the right to bear arms; then it
can only be a crime to exercise this right in such a manner, as to terrify the people
unnecessarily.” (Ibid.) In 1831, William Oldnall Russell stated: “And granting that no
bare words, in the judgment of law, carry in them so much terror as to amount to an
affray, yet it seems certain that in some cases there may be an affray where there is no
actual violence; as where persons arm themselves with dangerous and unusual weapons,
in such a manner as will naturally cause a terror to the people; which is said to have been
always an offence at common law, and is strictly prohibited by several statutes.”
(Russell, A Treatise on Crimes and Indictable Misdemeanors (1831) p. 271.) Henry J.
Stephen in 1840 stated that riding or going armed with dangerous or unusual weapons
was a misdemeanor. (Stephen, Summary of the Criminal Law, 27 Law Libr. [i] (1840)
p. 48.) Ellis Lewis stated in 1848 that, “[n]o quarrelsome or threatening words whatever,
can amount to an affray; but where persons openly arm themselves with dangerous and
unusual weapons, in such a manner as will naturally cause a terror to the people, which is
said to have been always an offence at common law, an affray may be committed without
actual violence.” (Lewis, An Abridgment of the Criminal Law of the United States
(1847) p. 64.) And, in 1852, Francis Wharton stated: “Although no bare words, in the
judgment of law, carry therein so much terror as to amount to an affray, yet it seems
certain that in some cases there may be an affray where there is no actual violence; as
where a man arms himself with dangerous and unusual weapons, in such a manner as will
naturally cause a terror to the people, which is said to have been always an offence at
common law, and is strictly prohibited by the statute.” (Wharton, A Treatise on the
Criminal Law of the United States (1852) p. 726.) Wharton subsequently stated: “It has
17
been said generally, that the public and open exhibition of dangerous weapons by an
armed man, to the terror of good citizens, is a misdemeanor at common law.” (Id. at
p. 727.)
Following its citation to these authorities, the Supreme Court in Heller further
observed: “It may be objected that if weapons that are most useful in military service —
M-16 rifles and the like — may be banned, then the Second Amendment right is
completely detached from the prefatory clause. But as we have said, the conception of
the militia at the time of the Second Amendment’s ratification was the body of all
citizens capable of military service, who would bring the sorts of lawful weapons that
they possessed at home to militia duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require sophisticated arms that are highly
unusual in society at large. Indeed, it may be true that no amount of small arms could be
useful against modern-day bombers and tanks. But the fact that modern developments
have limited the degree of fit between the prefatory clause and the protected right cannot
change our interpretation of the right.” (Heller, supra, 554 U.S. at pp. 627-628.)
D. Post-Heller Challenges to the Predecessor to Section 30605
This case is not the first challenge to California’s statute prohibiting possession of
assault weapons this court has entertained since the United States Supreme Court decided
Heller. In People v. James (2009) 174 Cal.App.4th 662 (James), this court upheld
former section 12280, subdivision (b), which the Legislature subsequently repealed and
replaced with section 30605 without substantive change (Stats. 2010, ch. 711, §§ 4, 6), as
well as former section 12280, subdivision (c) which prohibited possession of .50-caliber
BMG rifles. Before deciding the constitutionality of these provisions in the wake of
Heller, the court extensively recounted the legislative history of the AWCA, largely
derived from the California Supreme Court’s decision in Kasler, supra, 23 Cal.4th at
pages 482-488. (James, at pp. 667-673.) The James court summarized the purposes of
the regulations at issue: “the Legislature enacted the Roberti-Roos Assault Weapons
18
Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004 in order to address
the proliferation and use of unusually dangerous weapons: assault weapons, with an
incredibly ‘high rate of fire and capacity for firepower,’ which can be used to
indiscriminately ‘kill and injure human beings’ [citation]; and .50 caliber BMG rifles,
which ‘have such a high capacity for long distance and highly destructive firepower that
they pose an unacceptable risk to the death and serious injury of human beings,
destruction or serious damage of vital public and private buildings, civilian, police and
military vehicles, power generation and transmission facilities, petrochemical production
and storage facilities, and transportation infrastructure’ [citation].” (Id. at pp. 673-674.)
After considering many of the same passages in Heller that we have set forth ante,
the James court synthesized Heller’s teachings: “Accordingly, ‘the right secured by the
Second Amendment is not . . . a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.’ [Citation.] Rather, it is the right to
possess and carry weapons typically possessed by law-abiding citizens for lawful
purposes such as self-defense. [Citation.] It protects the right to possess a handgun in
one’s home because handguns are a ‘class of “arms” that is overwhelmingly chosen by
American society’ for the lawful purpose of self-defense.” (James, supra,
174 Cal.App.4th at pp. 675-676, citing Heller, supra, 554 U.S. at pp. 626, 628-630.)
The James court concluded the statutes challenged on that appeal did not proscribe
conduct protected by the Second Amendment as defined in Heller. (James, supra,
174 Cal.App.4th at p. 677.) In arriving at that conclusion, the James court stated: “As
the court’s discussion makes clear, the Second Amendment right does not protect
possession of a military M-16 rifle. [Citation.] Likewise, it does not protect the right to
possess assault weapons or .50 caliber BMG rifles. As we have already indicated, in
enacting the Roberti-Roos Assault Weapons Control Act of 1989 and the .50 Caliber
BMG Regulation Act of 2004, the Legislature was specifically concerned with the
unusual and dangerous nature of these weapons. An assault weapon ‘has such a high rate
19
of fire and capacity for firepower that its function as a legitimate sports or recreational
firearm is substantially outweighed by the danger that it can be used to kill and injure
human beings.’ [Citation.] . . . These are not the types of weapons that are typically
possessed by law-abiding citizens for lawful purposes such as sport hunting or self-
defense; rather, these are weapons of war.” (Id. at p. 676.) The James court further
observed: “While the fully-automatic nature of a machine gun renders such a weapon
arguably more dangerous and unusual than a semiautomatic assault weapon, that
observation does not negate the fact that assault weapons, like machine guns, are not in
common use by law-abiding citizens for lawful purposes and likewise fall within the
category of dangerous and unusual weapons that the government can prohibit for
individual use. . . . In any event, assault weapons and .50 caliber BMG rifles are at least
as dangerous and unusual as the short-barreled shotgun at issue in United States v. Miller,
supra, 307 U.S. 174.” (Id. at pp. 676-677.) The James court neither discussed nor
applied a means-scrutiny test as part of its analysis. (Id. at pp. 667-677.)
A few years after this court decided James, the defendant in People v. Zondorak
(2013) 220 Cal.App.4th 829 (Zondorak) challenged former section 12280, subdivision
(b) anew. The court in Zondorak surveyed the landscape, discussing Heller and James.
(Zondorak at pp. 832-835.) The court concluded: “We agree with James that the ban on
AK series rifles does not impinge on rights protected by the Second Amendment because
assault weapons ‘are at least as dangerous and unusual as the short-barreled shotgun’
[citation], which Miller concluded (with apparent approval from Heller) was outside the
scope of the Second Amendment’s guarantee. [Citation.] Indeed, assault weapons are
only slightly removed from M-16-type weapons that Heller likewise appeared to
conclude were outside the scope of the Second Amendment’s guarantee. Because we
conclude the AWCA [ (§ 30500 et seq.) ] does not ‘impose[ ] a burden on conduct falling
within the scope of the Second Amendment’s guarantee,’ as construed by Heller, ‘our
20
[Second Amendment] inquiry is complete’ and an evaluation of the validity of the law
under either strict scrutiny or intermediate scrutiny is unnecessary.” (Id. at p. 836.)
E. Constitutional Challenges to Statutes Generally
Before proceeding with the substance of our analysis, we note the approach courts
are compelled to take in considering constitutional challenges to statutes. “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.’ ” (People v.
Fuiava (2012) 53 Cal.4th 622, 696, quoting People v. Falsetta (1999) 21 Cal.4th 903,
912-913; accord, City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 10-11.) In
other words, “[c]ourts should exercise judicial restraint in passing upon the acts of co-
ordinate branches of government; the presumption is in favor of constitutionality, and the
invalidity of the legislation must be clear before it can be declared unconstitutional.”
(Dittus v. Cranston (1959) 53 Cal.2d 284, 286.)
F. Analysis
Applying the test originally established in Heller to California’s statute prohibiting
the possession of assault weapons, now set forth in section 30605, we again conclude the
Second Amendment’s plain text does not cover defendant’s conduct. Assault weapons
like the AR-15 style rifle police found in defendant’s car, are, like the short-barreled
shotgun addressed in Miller, supra, 307 U.S. 174, “weapons not typically possessed by
law-abiding citizens for lawful purposes.” (Heller, supra, 554 U.S. at p. 625.) Rather,
these are dangerous and unusual weapons. These weapons have a great deal in common
with the military M-16 rifle. As the Supreme Court has stated of such weapons, the “AR-
15 is the civilian version of the military’s M-16 rifle . . . .” (Staples v. United States
(1994) 511 U.S. 600, 603; accord, Zondorak, supra, 220 Cal.App.4th at p. 836 [“assault
weapons are only slightly removed from M-16-type weapons that Heller likewise
appeared to conclude were outside the scope of the Second Amendment’s guarantee”];
21
Heller v. District of Columbia (D.C. Cir. 2011) 670 F.3d 1244, 1263 [“it is difficult to
draw meaningful distinctions between the AR-15 and the M-16”].) As James concluded,
the United States Supreme Court’s discussion in Heller made clear that “the Second
Amendment right does not protect possession of a military M-16 rifle.” (James, supra,
174 Cal.App.4th at p. 676, citing Heller, supra, 554 U.S. at pp. 626-628.) And, further,
as stated in Zondorak and James, the assault weapons that are the subject of section
30605, “ ‘are at least as dangerous and unusual as the short-barreled shotgun’ [citation],
which Miller concluded (with apparent approval from Heller) was outside the scope of
the Second Amendment’s guarantee.” (Zondorak, at p. 836, quoting James, at p. 677 &
citing James, at pp. 674-675.)
In discussing circumstances at the time of the passage of the AWCA, the Supreme
Court in Kasler noted that, according to the Attorney General, law enforcement did not at
that time know how many assault weapons there were in California. (Kasler, supra,
23 Cal.4th at p. 484.) However, the numbers were “ ‘going up at a frightening rate.’ ”
(Ibid.) In Oakland, for example, the number of assault weapons seized by law
enforcement had tripled in less than two years. (Ibid.) Conversely, in its comprehensive
discussion of the legislative history and the circumstances at the time, the Supreme
Court’s majority opinion in Kasler did not once mention assault weapons being possessed
for self-defense, let alone being in common use at the time for that purpose. Only the
concurring opinion of Justice Brown (who also penned the majority) referred to self-
defense, and only in a historical context with no connection to assault weapons. (Id. at
p. 505 (conc. opn. of Brown, J.).) This strongly suggests that there was no prevailing
belief at the time that citizens commonly used assault weapons for the lawful purpose of
self-defense. (See id. at p. 485, quoting 1 Assem. J. (1989-1990 Reg. Sess.) p. 450
[discussing the testimony of Los Angeles Police Department Lieutenant Bruce Hagerty
before the California State Assembly meeting as a Committee of the Whole on
February 13, 1989, testifying about a Good Friday gang shooting with an AR-15 which
22
resulted in 14 people being shot, stating, “ ‘the military assault rifle is the vehicle that
they used. [¶] . . . I’m here to tell you that there’s only one reason that they use these
weapons, and that is to kill people. They are weapons of war.’ ”].) Before signing the
legislation, Governor Deukmejian stated: “ ‘ “It’s well known that some drug dealers and
violent gang members are using assault-type weapons”. . . . [¶] “In the face of such
firepower, our state’s courageous law enforcement officers need all the help that we can
give them as they seek to preserve our public safety”. . . .’ ” (Kasler, at pp. 486-487.)
Indeed, a spokesman for the California Police Chiefs Association said neither the Senate
Bill nor the Assembly Bill “went far enough.” (Id. at p. 487.)
Moreover, while earlier versions of the bill generically defined the assault
weapons to be banned, lawmakers amended the bill so as to avoid “ban[ning] some
legitimate hunting rifles” in service of the effort to prohibit possession of assault
weapons. (Kasler, supra, 23 Cal.4th at p. 485.) Instead of defining assault weapons
generically, the amended, and subsequently enacted, version listed the specific weapons
that were to be banned. (Id. at pp. 485-486.) Thus, the assault weapons that were the
target of the act were not thought to be possessed by citizens for lawful purposes,
whereas “legitimate hunting rifles” were excluded from the act’s reach. If it was believed
that certain weapons that otherwise might qualify as assault weapons were in common
use for the lawful purpose of self-defense at the time, then certainly these weapons, like
“legitimate hunting rifles,” would have been excluded from the statute’s reach. Instead,
“in enacting the assault weapons control act, the Legislature sought to address ‘the grave
threat to public safety posed by the possession and use of assault weapons by
criminals . . . .’ ” 5 (James, supra, 174 Cal.App.4th at p. 672, italics added, quoting
Kasler, at p. 487.)
5 Specific instances illustrating the “crisis created by the proliferation and use of
assault weapons” that was the subject of the California State Assembly meeting as a
23
That assault weapons such as defendant’s AR-15 rifle are “weapons not typically
possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns”
(Heller, supra, 554 U.S. at p. 625) has not changed since the courts in James and
Zondorak considered the issue. And because California’s statute prohibiting the
possession of assault weapons has been upheld and operative in the interim, by definition,
and with exemptions that need not be discussed here, these weapons are not presently
possessed by law-abiding citizens in California for lawful purposes.
We acknowledge, of course, that these weapons may be in common use in other
jurisdictions. However, the scope of our concern is limited to California and the
constitutionality of section 30605. And, in this regard, we note section 30605 and its
predecessor have been upheld repeatedly over more than 30 years. We further note that,
while it is but one jurisdiction, it is difficult to conceive of California as an “outlier” (see
Bruen, supra, ___U.S. at pp.___, ___ [213 L.Ed.2d at p. 413, 438-439]) given
Committee of the Whole on February 13, 1989, were described at that meeting as
repeated in Kasler. (Kasler, supra, 23 Cal.4th at p. 482.) In one instance, a shooting at
Cleveland Elementary School in Stockton occurred the month before the meeting. (Id. at
p. 483.) “While 300 pupils, mostly kindergartners through third graders, were enjoying
their lunchtime recess, Patrick Purdy, who had placed plugs in his ears to dull the sounds
of what he was about to do, drove up to the rear of the school and stepped out of his car
carrying a Chinese-made semiautomatic AK-47. ‘Impassively, Purdy squeezed the
trigger of his rifle, then reloaded, raking the yard with at least 106 bullets. As children
screamed in pain and fear, Purdy placed a 9-mm pistol to his head and killed himself.
When the four-minute assault was over, five children, ages 6 to 9, were dead. One teacher
and 29 pupils were wounded.’ ” (Ibid.)
Five years earlier, James Huberty entered a McDonald’s location in San Ysidro
armed with a nine-millimeter pistol, a 12-gauge shotgun, and a nine-millimeter
semiautomatic rifle. (Kasler, supra, 23 Cal.4th at p. 483.) He told everyone to get on the
floor and then walked around “calmly spraying gunfire.” (Ibid.) After law enforcement
killed Huberty, they entered and discovered the “carnage was clearly far worse than it
would have been had Huberty not been armed with semiautomatic weapons. He fired
hundreds of rounds. ‘The gunfire was so heavy that police at first assumed that more
than one gunman was inside. . . .’ [Citation.] In all, of the 45 patrons in the restaurant,
Huberty killed 21 and wounded 15 others.” (Ibid.)
24
California’s outsized population, economy, cultural influence, and, most importantly, its
30-year history and tradition of assault weapon regulation. Moreover, since the passage
of the AWCA in 1989, several states have followed California’s lead and passed laws
banning assault weapons in at least some form, most recently in 2023. (See N.J. Stat.
Ann. §§ 2C:39-1(w), 2C:39-5(f), 2C:58-5, 2C:58-12, 2C:58-13; Hawaii Rev. Stat. Ann.
§§ 134-1, 134-4(e), 134-8; Conn. Gen. Stat. §§ 53-202a – 53-202o; Md. Code Ann.,
Crim. Law §§ 4-301 – 4-306; Mass. Gen. Laws Ann. ch. 140, §§ 121, 122, 123, 131M;
N.Y. Penal Law §§ 265.00(22), 265.02(7), 265.10, 400.00(16-a); Del. Code Ann. tit. 11,
§ 1466; 720 Ill. Comp. Stats. Ann. 5/24-1(a)(11), (14)-(16), 5/24-1.9, 5/24-1.10.) The
United States Congress did the same, enacting an assault weapons ban in 1994, although
it had a 10-year sunset provision. (Former 18 U.S.C. § 922(v)-(w).)
Notwithstanding our consideration of the constitutionality of section 30605
generally, we note that “ ‘[a] litigant can be heard to question the validity of a statute only
when and in so far as it is applied to his disadvantage.’ ” (Mt. San Jacinto Community
College Dist. v. Superior Court (2007) 40 Cal.4th 648, 664, quoting Rindge Co. v. Los
Angeles County (1923) 262 U.S. 700, 709-710; see Members of City Council of City of
Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789, 797 [“a litigant only has
standing to vindicate his own constitutional rights”].) “[G]iven that constitutional rights
are generally personal,” a defendant generally may not assert a constitutional claim on
behalf of others. (People v. Hazelton (1996) 14 Cal.4th 101, 109.) “The rule is well
established . . . that one will not be heard to attack a statute on grounds that are not shown
to be applicable to himself and that a court will not consider every conceivable situation
which might arise under the language of the statute and will not consider the question of
constitutionality with reference to hypothetical situations.” (In re Cregler (1961)
56 Cal.2d 308, 313, citing United States v. Raines (1960), 362 U.S. 17, 21-22, People v.
Perry (1931) 212 Cal. 186, 193 & People v. Naumcheff (1952) 114 Cal.App.2d 278, 280;
accord, People v. Parker (1973) 33 Cal.App.3d 842, 849 [“One to whom the application
25
of a statute is constitutional will not be heard to attack the statute on the ground that it
might be unconstitutional when considered in other situations.”].) The general rule is that
“constitutional adjudication requires a review of the application of a statute to the
conduct of the party before the Court.” (Members of City Council of City of Los Angeles
v. Taxpayers for Vincent, supra, 466 U.S. at p. 798.) We turn, then, to the question of the
constitutionality of section 30605 as applied to defendant.
Defendant here certainly was not acting as a law-abiding citizen who possessed his
AR-15 rifle for lawful purposes. Defendant drove from his home in San Jose to
Vernon R.’s house in Manteca “loaded for bear” as the trial court put it at sentencing.
Defendant had three firearms with him, including the AR-15 style rifle. It was a
centerfire semiautomatic rifle with a flash suppressor, a pistol grip protruding from the
bottom portion of the action, a magazine release button, and a telescoping buttstock.
Thus, the rifle was an assault weapon as defined in section 30515, subdivision (a)(1).
Officer Cardenas noted the AR-15 style rifle was stuck or jammed. Officer Montero
testified a firearm might make a clicking sound if it malfunctions or is empty. Before
shots were fired into the house, Vernon R. heard what he described as the clicking of a
gun, specifying he heard at least a couple of clicks. Defendant fired shots into
Vernon R.’s house and possibly at Vernon R. There was what appeared to be blood on
the AR-15 as well as the revolver, suggesting at the least defendant touched it after
returning to his car with blood on his hands and possibly that he had it with him during
the incident and attempted to fire it. After the incident, law enforcement and Vernon R.
discovered the power to Vernon R.’s house had been cut. Law enforcement and
Vernon R. found bullet holes and bullets in Vernon R.’s house. The United States
Supreme Court has made clear the Second Amendment protects a law abiding citizen’s
right to possess a handgun for self-defense, whether in the home or outside the home.
(Bruen, supra, ___U.S. at p.___ [213 L.Ed.2d at p. 401], citing Heller, supra, 554 U.S.
570 & McDonald, supra, 561 U.S. 742.) There is simply no interpretation of the facts
26
here that suggests defendant possessed the AR-15 rifle for self-defense at the relevant
times, a fact defendant’s appellate counsel conceded at oral argument.
Defendant relies extensively on Bruen in making his argument that section 30605
violates the Second Amendment. 6 Bruen did not analyze whether a particular type of
firearm is protected under the Second Amendment. Rather, Bruen focused on whether
New York’s statutory public-carry licensing scheme violated the Second Amendment
right to carry handguns publicly for self-defense. (Bruen, supra, ___U.S. at pp.___, ___
[213 L.Ed.2d at pp. 401, 405].) The Supreme Court in Bruen held: “when 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.’ ” (Id. at p. ___ [213 L.Ed.2d at p. 405]; see id. at
p.___ [ 213 L.Ed.2d at p. 409].) Defendant asserts that, because “no such historical
tradition of regulating assault weapons exists, [defendant’s] conviction for violating
section 30605 must be reversed.”
Defendant relies on Bruen and what he characterizes as its “newly articulated test”
in asserting that section 30605 violates the Second Amendment. However, the Supreme
Court in Bruen did not create a new test applicable to Second Amendment challenges to
firearm regulations. Rather, the Supreme Court in Bruen clarified the contours of Heller.
In its own words, the majority in Bruen discussed the “test that we set forth in Heller and
apply today . . . .” (Bruen, supra, ___U.S. at p.___ [213 L.Ed.2d at p. 411].) Similarly,
6 In his reply brief, defendant also relies on a number of advocacy-based law review
articles, we give little weight to.
27
turning to the application of the test to the matter before it, the Bruen majority stated:
“Having made the constitutional standard endorsed in Heller more explicit, we now apply
that standard to New York’s proper-cause requirement.” (Id. at p.___ [213 L.Ed.2d at
p. 414].) Thus, the majority in Bruen made explicitly clear that it was applying the test it
initially set forth in Heller.
Like the Supreme Court in Bruen, here, we do no more than apply the test
announced in Heller. Doing so, we conclude the Second Amendment’s plain text does
not cover defendant’s conduct. This is exactly what the courts in James and Zondorak
did. (Zondorak, supra, 220 Cal.App.4th at p. 836 [AWCA “does not ‘impose[ ] a burden
on conduct falling within the scope of the Second Amendment’s guarantee,’ as construed
by Heller”]; James, supra, 174 Cal.App.4th at p. 677 [“We conclude that [former] section
12280, subdivisions (b) and (c), does not prohibit conduct protected by the Second
Amendment to the United States Constitution as defined in Heller, supra, 554 U.S.
[570]”].) And like those courts, we conclude the statute prohibiting possession of assault
weapons does not violate the Second Amendment as construed by Heller. 7
7 Two days before oral argument, the Attorney General filed additional citations
with the court. (Delaware State Sportsmen’s Assn., Inc. v. Delaware Dept. of Safety and
Homeland Security (D.Del., Mar. 27, 2023, No. CV 22-51-RGA) ___F.Supp.3d___
[2023 WL 2655150]; Bevis v. City of Naperville, Illinois (N.D.Ill., Feb. 17, 2023, No. 22
C 4775) ___F.Supp.3d___ [2023 WL 2077392]; Ocean State Tactical, LLC v. State of
Rhode Island (D.R.I. Dec. 14, 2022, No. 22-CV-246 JJM-PAS) [2022 WL 17721175];
Oregon Firearms Federation, Inc. v. Brown (D.Or., Dec. 6, 2022, No 2:22-CV-01815-
IM) ___F.Supp.3d___ [2022 WL 17454829].) These cases were all federal district court
cases. “ ‘[T]he decisions of federal district and circuit courts, although entitled to great
weight, are not binding on state courts even as to issues of federal law.’ ” (Felisilda v.
FCA US LLC (2020) 53 Cal.App.5th 486, 497; accord, Caliber Paving Co., Inc. v.
Rexford Realty & Management, Inc. (2020) 54 Cal.App.5th 175, 186-187 [we are not
bound by decisions of federal district courts and circuit courts of appeals].) Additionally,
like both Bruen and Heller, the four cases cited as new authority were all civil matters
involving a more generalized challenge to the laws at issue as opposed to defendant’s
challenge to the statute under which he stands convicted.
28
A significant clarification Bruen did make was that it forcefully rejected the
second step of the two-part test that had been widely embraced in federal courts of appeal
following Heller. That two-part test, rejected by the Supreme Court, was as follows:
First, the government would attempt to justify a regulation by establishing it regulated
activity falling outside the scope of the Second Amendment right based on its historical
meaning, and, if the government failed to do so, then second, the court would engage in
what the Supreme Court called a means-end scrutiny test. (Bruen, supra, ___U.S. at
pp.___ [213 L.Ed.2d at pp. 405-406].) This means-end scrutiny test refers to familiar
tests employing standards including strict scrutiny and intermediate scrutiny. (See id. at
p.___ [213 L.Ed.2d at p. 406].) About this means-end scrutiny step of the analysis, the
majority in Bruen stated: “Despite the popularity of this two-step approach, it is one step
too many. Step one of the predominant framework is broadly consistent with Heller,
which demands a test rooted in the Second Amendment’s text, as informed by history.
But Heller and McDonald do not support applying means-end scrutiny in the Second
Amendment context. Instead, the government must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits the outer bounds of the right to
keep and bear arms.” (Ibid.)
In addition to citing new authority, in the pre-oral-argument filing, the Attorney
General stated, “at oral argument I intend to agree with appellant that a limited remand
might be appropriate in this case (as suggested on pages 25-26 of the reply brief).” To
the extent this, and the Attorney General’s statements at oral argument, constitute a
concession to the need for a limited remand for purposes of litigating the constitutionality
of section 30605 in the trial court, we do not accept the concession. We see no
impediment to our ability to decide the issues presented on the current record. Indeed,
defendant’s position concerning limited remand was only that, if we found the record
insufficient to adjudicate his claim, we should conditionally reverse and remand for an
evidentiary hearing. At oral argument, defendant’s appellate counsel agreed the record
was sufficient for us to make a determination on the merits, requesting that we “address
all issues here today,” and stated the matter need not be remanded for an evidentiary
hearing in the trial court on the issue of “common use.”
29
We specifically emphasize the fact that Bruen rejected this means-end scrutiny
portion of the test for a reason. Neither James nor Zondorak relied on the means-end
scrutiny component in rejecting constitutional challenges to the predecessor to section
30605. Therefore, these cases are not called into question based on Bruen’s rejection of
the means-end scrutiny analysis.
To summarize, the courts in Zondorak and James concluded that California’s
statute prohibiting possession of assault weapons did not violate the Second Amendment
as construed by Heller, supra, 554 U.S. 570. The United States Supreme Court in Bruen,
in its own words, applied the “test that [it] set forth in Heller . . . .” (Bruen, supra,
___U.S. at p.___ [213 L.Ed.2d at p. 411]; see also id. at p.___ [213 L.Ed.2d at p. 414].)
The Zondorak and James courts did not employ the means-end scrutiny test which the
Supreme Court rejected in Bruen. (Id. at p.___ [ 213 L.Ed.2d at p. 406].) Specifically,
the James court made no mention of such a test. The Zondorak court found it
unnecessary to apply that test because it had concluded the challenged regulation “does
not ‘impose[ ] a burden on conduct falling within the scope of the Second Amendment’s
guarantee,’ as construed by Heller,” and therefore “ ‘our [Second Amendment] inquiry is
complete . . . .’ ” (Zondorak, supra, 220 Cal.App.4th at p. 836.) We agree with the
decisions in Zondorak and James upholding the statutory predecessor to section 30605 on
the ground that assault weapons like the AR-15 style rifle police found in defendant’s car,
are “weapons not typically possessed by law-abiding citizens for lawful purposes”
(Heller, at p. 625), and “ ‘are at least as dangerous and unusual as the short-barreled
shotgun’ [citation], which Miller concluded (with apparent approval from Heller) was
outside the scope of the Second Amendment’s guarantee.” (Zondorak, at p. 836, quoting
James, supra, 174 Cal.App.4th at p. 677 & citing James, at pp. 674-675.) In short, as did
the courts in James and Zondorak, we conclude California’s prohibition of possession of
assault weapons, now at section 30605, does not violate the Second Amendment as
construed by Heller. This is settled law.
30
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded for full resentencing.
Defendant’s convictions are otherwise affirmed.
\s\ ,
McADAM, J. *
We concur:
\s\ ,
ROBIE, Acting P. J.
\s\ ,
MAURO, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
31