Petition for Writ of Certiorari — John Wessley Gleason, Petitioner v. California

App-1

Filed 12/11117 P. v. Gleason CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits

courts and parties from citing or relying on

opinio;ns not certified for publication or ordered

published, except as specified by rule 8.1115(b).

This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff a nd Respondent,

v.

H042771

(Monterey County

Super. Ct. No.

SS141935)

JOHN WESSLEY GLEASON,

Defendant and Appellant.

Defendant John Wessley Gleason was convicted by

jury trial of felony possession of an assault weapon (Pen.

Code, § 30510, subd. (a)(11)). 1 The trial court refused to

reduce the conviction to a misdemeanor under section 17,

subdivision (b) and placed defendant on felony probation.

On appeal, defendant contends that prohibiting him from

possessing an assault weapon violates his Second

Amendment rights, and he asserts that the trial court

abused its discretion in refusing to reduce his conviction

Subsequent statutory references a re to the Penal Code.

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to a misdemeanor. We reject both of his contentions and

affirm the court's order of probation.

I. Facts

In July 2014, defendant and Angelina Sottile had

been living together for eight year s. They were engaged

a nd were the parents of six-year-old Evelyn. Sottile was

unhappy in the relationship due to defendant's drinking.

She knew that defendant had several guns, including an

"SKS rifle ." Defendant h a d kept guns for m any years. He

kept the guns in a gun safe in a sh ed in the backyard of

their home.

When Sottile got home from work on the afternoon

of July 14, 2014, defendant was home alone. He had ~een

drinking, and he initiated a conversation about their

relationship. Sottile told him that she was not happy and

no longer found him attractive. Defendant became upset

a nd hurt. Sottile was cooking dinner when defendant' s

17-year-old daughter , Tamarie Gleason (Tammy), and

Sottile's "ex-girlfriend from high school," Patricia Van

Kempen, returned home with Evelyn. The women sat

down and h a d dinner. Defendant did not eat dinner with

them. Instead, h e continued to drink. Mter dinner , h e

resumed the conversation with Sottile about their

relationship, and Va n Kempen, Tammy, and Evelyn went

out to rent a movie. Defendant continued to drink and to

be up set. When Van Kempen and the girls returned,

defendant went out and bought another bottle of wine for

him to drink.

Defenda nt continued to talk to Sottile about their

relationship, and h e told her to "leave." Van Kempen and

the girls went to Evelyn 's room around 8:30p.m. to avoid

exposing the girls to the h eated conversation between

defendant a nd Sottile. Sottile told him that she would

leave the n ext day. Defendant was "very upset ," and h e

"went outside." Van Kempen and the girls rejoine d

Sottile in the living room, and they started to watch the

movie. Defenda nt was "pacing around," a nd at one point

came in, sat down next to Sottile, a nd "stared at" her. At

another point, defendant, who was cont inuing to drink,

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came in and told Sottile that Van Kempen "h ad to leave." 2

He also asked Tammy to put Evelyn to bed. Defendant

again "disappeared out in the back for a while" and then

came in and locked both the knob and the deadbolt on the

front door, which Sottile thought "was strange because we

pretty much never locked our door." Defenda nt was also

going into a nd out of his a nd Sottile's bedroom.

Toward the end of the movie, Sottile decided that

she would leave that night. When the movie ended, she

told the others by text message that she was going to grab

her and Evelyn's "stuff ... and then we'll leave." Sottile

went to Evelyn's room and grabbed some things. She

then waited for defendant to come out of their room

because he h ad locked himself inside. Eventually sh e got

tired of waiting and, after he walked out of the room and

then right back into it, she opened the door.

Defendant wa s standing facing the bed. The SKS

rifle was on the bed with a magazine inserted into it.

Sottile looked at defendant and looked at the bed and said

"'Are you kidding me?"' Defendant grabbed the gun.

Sottile could "h ear the metal shuffling," but she could not

be sure wh ether this was sound of the gun being cocked.

Sottile turned around, grabbed Evelyn, told Van Kempen

a nd Tammy '"[w]e got to go,' " and ran out the front door .

She found defendant's actions so "scary" and frightening

that she left her purse, phone, clothing, and other stuff in

the house.

When Sottile looked back, the others were not

behind her. She put Evelyn temporarily in defendant 's

unlocked vehicle and t old her to stay there. Back in t he

house, defendant had come out of the bedroom holding the

SKS rifle, which had its magazine attached. He did not

say anything; he h eld the gun, cried, and stared at them.

Tammy told defendant: "'You h ave to promise that you'r e

not going to hurt us."' Defendant replied: " 'I can't

promise that.'" Tammy "stayed and covered" Van

Kempen "while she got h er belongings." Tammy "covered"

Van Kempen "just in case my da d did decide to do

something h e might regret because he was upset."

2

Sottile saw defendant consume three bottles of wine that day

over an eigh t-hour period.

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Tammy thought defendant might shoot Van Kempen. 3

After Van Kempen gathered her belongings, Tammy and

Van Kempen "came running out" of t h e house just as

Sottile was approaching the front door. Sottile told

Ta mmy that s he had forgotten h er purse, and Ta mmy

went back in and grabbed it. Sottile grabbed Evelyn, and

they ran across the street to Van Kempen's car . As they

were getting into the car, Sottile saw defendant pacing

n ear the gar age with the SKS rifle "carried on his side" at

his hip with the barrel pointed "in our general direction."

Sottile and Van Kempen "told the girls to put their heads

down" as they drove away.

Sott ile contacted the police the next day. The

police obtained a search warrant for defendant's home.

They searched the master bedroom and found the keys to

the gun safe, "unspent 7.62 caliber ammunition," a holster

with a 30-round nine-millimeter magazine, defendant's

driver's license, and a purchase order for the SKS rifle.

Defendant had purchased t he SKS rifle in 2001 for $300.

The police then searched the gun safe in the she d in the

backyard and found the SKS rifle and a fully loaded,

detachable, 30-round "banan a" m agazine containing 7.62

caliber ammunition. Defenda nt's SKS rifle was a

centerfire gun with "a folding stock" a nd "a pistol grip."

II. Procedural Background

Defendant was charged by information with felony

possession of an SKS assault weapon, three count s of

felony assault with a firearm (§ 245, subd. (a)(2)), one

count of misdemeanor exhibition of a deadly weapon (§

417, subd. (a)(1)), a nd two counts of child endangerment

(§ 273a, subd. (b)).

At t h e jury trial, the prosecut ion presented an

expert witness on firearms. He testified: "The SKS is

basically a semiautomatic weapon. The original version

of the SKS, it's magazine fed. It h as a fixed ten round

magazine. It h as a fixed stock, and it has a bayonet t h at

swivels in a nd out from underneath. It's a lot longer in

Tammy originally told the police that defendant had pointed

the gun at them, but s h e recanted that statement a month la ter.

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len gth, overall len gth, compared to an AK." Defendant's

SKS rifle differed from th e original version because it had

"a folding stock," "a pistol grip," a nd a detachable "banana

magazine" that could h old up to 30 rounds. An SKS rifle

is an assault weapon if it has a folding stock, a pistol grip

or a detach able magazine, and defenda nt's SKS rifle had

all three features. Defenda nt's SKS rifle was test-fired

and found t o be fully functional a nd to operate as a

semiautom atic.

Defendant testified that h e owned two .22 rifles in

addition to the SKS rifle at the time of the incident. He

also had various accessories including "ammunition,

scopes, scope mounts, a ll kinds of different accessories."

Defendant testified: "I don't hunt. I just sh oot." He kept

the guns locked in the s hed's gun safe except when h e

brought them into the house to clean them. The guns

would "[g]enerally not" be loaded when he brought them

into t h e house. Defendant testified t hat h e brought the

SKS rifle into the house four or five days before the

incident to clean it up so that he could sell it. He did not

return t he SKS rifle to the gun safe because it took him

several days to clean it. Instead, h e kept it in his

bedroom. Defendant maintained that the SKS rifle was

never loaded while it was in th e house, though the

magazine was also in his bedroom so that it t oo could be

cleaned.

Defendant admitted that he h a d drunk much of a

bottle of wine before Sott ile arrived home from work on

July 14, 2014, a nd that he later went out a nd bought

another bottle of wine. His conver sation with Sottile

made him very depressed but not angry. He paced

around and cried. Defendant testified that h e went into

his bedroom, saw the SKS rifle, and, for less t h an a

minute, considered killing himself. H aving rejected that

idea due to his concern for his children, "I decided I would

put the gun away." He picked up th e gun, checked t h at

th e chamber was empty, a nd turned toward the door to

take the gun back to the sh ed. It was at that moment

that Sottile walked into t he bedroom. Defendant insisted

that t he magazine attached to t he SKS rifle was empty at

that time. He also·testified: "[I]t would not be unusu al to

see me in the house with a gun with a magazine in it."

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He walked into the living room and "realized that

they were running because they were scared I was going

to do something with this gun ...." He put the gun back

in his bedroom and went back out to the living room,

where he encountered Tammy. Defendant thought she

said: "Do you promise you're not going to hurt yourself?'"

That was why he responded "that I couldn't guarantee h er

that." He went out to try to talk to the women, but they

drove away. Defendant denied that he had pointed the

SKS rifle at anyone that night. Mter the women left, h e

put the SKS rifle back into the gun safe.

The jury was instructed: "An SKS rifle with

detachable magazine is an assault weapon. [,[] An

assault rifle also includes any semiautomatic, center-fire

rifle that h as the capacity to accept a detachable

magazine and either has a pistol grip that protrudes

conspicuously beneath the action of the weapon or has a

folding stock." The jury returned a guilty verdict on the

possession count, but it acquitted defendant of the assault

counts and the child endangerment counts. The jury

deadlocked on the exhibition count.

The court declared a mistrial on the exhibition

count, and it granted the prosecution's motion to dismiss

that count. When defendant spoke to the probation

officer, h e "denied having an issue with alcohol." He said

he was a "light to moderate" drinker . Defendant was 54

years old and had a couple of prior misdemeanor

convictions and no felony convictions. The probation

department recommended felony probation with a 240day jail t erm, and the prosecution agreed with this

recommendation.

Defendant a sked the court to reduce his conviction

to a misdemeanor under section 17, subdivision (b). His

trial counsel argued that misdemeanor treatment was

appropriate because defendant (1) never denied

possessing the gun, which he "knew was an illegal

weapon," (2) "was willing to enter a plea of guilty to

possession of the firearm ," (3) cooperated with the

investigation, (4) had "a very minimum prior crimina l

history" and no history of violence, and (5) ha d

"voluntarily [sou ght] counseling" and "discontinue[d] his

alcohol use." She also asserted that defendant was "in

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poor health" a nd "not a danger to society." The

prosecution opposed a reduction.

The court was not persuaded by defenda nt's trial

counsel's a rgument. "[H]e's always been willing to accept

responsibility for that [possession] charge, but never as a

felony. Never. Not before the trial and not after the trial

a nd just really dead set against it as a felony."

Defendant's trial counsel contested the court's assertion

and stated that defenda nt had been willing to plead to the

possession offense as a felony "17(b) open," but the

prosecutor h ad not been willing to accept such a plea.

The court responded: "I didn't get that impression at the

triaL" 4

The court refused to reduce the conviction to a

misdemeanor due to the nature of defendant's conduct. In

the court's view, "the circumstances of the possession and

the characteristics of t h e individual possessing it, leads

really to only one conclusion, and that's felony conduct."

"You have someone who denies really being motivated, at

least in some ways, being motivate d against the women in

th e house at the time but who denies being an gry, denies

being emotion al, denies th at they a re in his sight ... and

yet can't help but express that an ger ...." The court

characterized defendant's description of the events to the

probation officer as "th e words of someone who is thinking

bad thoughts a bout someone. That's someone who is

scary. Holding an assault rifle ... ." "I think we've read

about people like you who get despondent, who have an

affinity for guns, who won't plead if it's a felony ... and

th e reason that you won't plead to it as a felony is becau se

you want to h ave guns in the future. I think. I t hink that

was the reason for it." Neverth eless, in light of

defenda nt's tria l counsel's argument that defendant h ad

been willing to plead to a felony, the court did not rely on

its belief that defendant had been unwilling to plead t o

felony conduct. "[I]t's still a question about whether or

not conduct is felonious. I think t he Court's analysis still

During a h earing in the midst of trial on defendant's request

for s ubstitution of counsel, outside the jury's a nd the prosecutor's

presence, defendant's tria l counsel told t he court that defendant had

been unwilling to accept any plea bargain that would bar him from

possessing firearms.

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stands. It is. It was very scary and ... it's the kind of

thing you don't want to read about in the future, I

suppose."

The court suspended imposition of sentence and

placed defendant on probation conditioned on a 180-day

jail term. Defendant timely filed a notice of appeal.

III. Discussion

A. Second Amendment

Defendant contends that section 30605 is

unconstitutional under the Second Amendment because it

does not exclude from its prohibition the possession of an

assault weapon for self-defense in one's home. He makes

a facial challenge to the constitutiona lity of the statute.

An SKS rifle "with detachable magazine" is

statutorily defined as an assault weapon. (§ 305 10, subd.

(a)(ll).) "Any person who, within this state, possesses

any assault weapon, except as provided in this ch apter,

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).)

"Like most rights, the right secured by the Second

Amendment is not unlimited." (District of Columbia v.

Heller (2008) 554 U.S. 570, 626.) "[T]he Second

Amendment does not protect those weapons not typically

possessed by law-abiding citizens for lawful purposes,

such as short-barreled shotguns." (Id. at p. 625.) "[T]he

sorts of weapons protected were those 'in common use at

the time[,]' " which does not include '"dangerous and

unusual weapons."' (Id. at p. 627.)

Defendant claims that assault weapons are "in

common use and possessed by law-abiding citizens for

lawful purposes." He relies heavily on a former opinion of

the Fourth Circuit Court of Appeals. (Kolbe v. Hogan (4th

Cir. 2016) 813 F.3d 160, rehearing en bane granted.)

That opinion was s uperseded by a subsequent opinion

reaching the opposite conclusion. (Kolbe v. Hogan (4th

Cir. 2017) 849 F.3d 114 (Kolbe II).) In Kolbe II, the

Fourth Circuit held that "assault we apons and largecapacity magazines" are "1ike' 'M-16 rifles,' i .e., 'weapons

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that are most useful in military service,' and thus outside

the ambit of the Second Amendment." (Kolbe II, at

p . 136.) The Fourth Circuit explained that the features

that make a weapon an assault weapon, such as a folding

stock, a pistol grip, or a large-capacity magazine, '"serve

specific combat-functional ends"' that take such weapons

outside the protection of t he Second Amendment. (Kolbe

II, at p. 137.)

Defendant's reliance on Heller v. District of

Columbia (D.C. Cir. 2011) 670 F.3d 1244 (Heller II) is

misplaced because Heller II did not resolve the issue of

whether assault weapons are within the ambit of the

Second Amendment. The Heller II court avoided this

issue because it concluded that, even if the Second

Amendment applied, the prohibitions su rvived

intermediate scrutiny. (Heller II, at p. 1261.) The same is

true with regard to defendant's reliance on New York

State Rifle & Pistol Ass'n, Inc. v. Cuomo (2d Cir. 2015)

804 F.3d 242. Defendant cites Fyock v. Sunnyvale (9th

Cir. 2015) 779 F .3d 991, but Fyock did not concern assault

weapons. It dealt with a prohibition on magazines that

could be used with handguns. (Fyock, at pp. 997-998.)

Defendant also cites Friedman v. City of Highland Park

(7th Cir. 20 15) 784 F.3d 406 (Friednwn), but it provides

no support for his contention. In Friedman , the Seventh

Circuit rejected a constitutional challenge to a locality's

ban on assault weapons. (Id. at pp. 410-412.)

Defendant's challenge to the constitutiona lity of

section 30605 is not novel. The Third District Court of

Appeal rejected such a challenge in People v. James (2009)

174 Cal.App.4th 662 (James). In James, the defendant

challenged section 30605's predecessor, former section

12280. He claimed that the Second Amendment's

protection extended to "'military type weapons."' (James,

at p. 667.) The Third District concluded that the types of

weapons prohibited by former section 12280 (now section

30605) were not protected under the Second Amendment

because they were "weapons of war" and therefore were

"not the types of weapons that are typically possessed by

law-abiding citizens for lawful purposes such as sport

hunting or self-defense." (James, at pp. 674-676.)

The Fourth District Court of Appeal a lso rejected a

challenge to former section 12280 in People v. Zondorak

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(2013) 220 Cal.App.4th 829 (Zondorak). It agreed with

the Third District that assault weapons are not protected

by the Second Amendment because they are military

weapons. (Zondorak, at p. 836.) Like defendant, the

defendant in Zondorak argued that the assault weapons

prohibition violated the Second Amendment because it

"carves out no exceptions for possession of those weapons

within the homes of otherwise law-abiding citizens for

self-defense." (Id. at p. 837.) The Fourth District rejected

this argument because "when a weapon falls outside the

class of weapons entitled to Second Amendment

protections, neither the place in which it is stored nor the

purposes for which it might be u sed imbues the weapon

with Second Amendment protections." (Ibid.)

We agree with the Third District's analysis in

James and the Fourth District's analysis in Zondorah.

The assault weapons prohibited by section 30605 have

unusual and dangerous feature s that make them

"weapons of war," and they therefore do not fall within

the protection of the Second Amendment. The location of

their storage and the purpose for their possession plays no

role in this determination. Accordingly, we reject

defendant's Second Amendment facial challenge to section

30605.

B. Section 17, subdivision (b)

Defendant claims that the trial court abused its

discretion in refusing to reduce his conviction to a

misdemeanor because it (1) failed to "give due

consideration" to his individual circumstances, (2) relied

on "a personally-held bias" "against persons who own

guns," and (3) relied on its "incorrect assumption that

appellant was adamantly opposed to pleading to a felony

so as not to be prohibited from possessing guns."

Section 17, subdivision (b) provides that "[w]hen a

crime is punishable, in the discretion of the court, either

by imprisonment in the state prison or imprisonment in a

county jail under the provisions of subdivision (h) of

Section 1170, or by fine or imprisonment in the county

jail, it is a misdemeanor for all purposes under the

following circumstances: [~] (1) Mter a judgment

imposing a punishment other than imprisonment in the

state prison or imprisonment in a county jail under the

provisions of s ubdivision (h) of Section 1170." A ruling

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under section 17, subdivision (b) must be based solely on

"individualized consideration of the offense, the offender,

and the public interest ...." (People v. Superior Court

(Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) The court

may consider "'the nature and circumstances of the

offense, the defendant's appreciation of and attitude

toward the offense, or his traits of character as evidenced

by his behavior and demeanor at the trial."' (Ibid.) An

appeal challenging a trial court's exercise of its discretion

under section 17, subdivision (b) can succeed only if it

establishes that the trial court's decision was "'i rrational

or arbitrary."' (Alvarez, at p. 977.) '"In the absence of

such a showing, the trial court is presumed to have acted

to achieve legitimate sentencing objectives, and its

discretionary determination to impose a particular

sentence will not be set aside on review.' [Citation.]" (Id.

at pp. 977 -978.)

The trial court's explanation of its rationale for

refusing to reduce defendant's conviction to a

misdemeanor plainly displayed that the court had

considered defendant's individual characteristics and the

nature of the offense. The court explained that "the

circumstances of the possession and the characteristics of

the individual possessing it, leads really to only one

conclusion, and that's felony conduct." "You have

someone who denies really bein g motivated, at least in

some ways, being motivated against t he women in the

house at the time but who denies being angry, denies

being emotional, denies that they are in his sight ... and

yet can't help but express that anger ...." Defendant's

explanation to the probation officer was, in the court's

view, "the words of someone who is thinking bad thoughts

about someone. That's someone who is scary. Holding an

assault rifle .. .." The court found defendant's conduct

and his attitude toward his conduct very troubling with

regard to defendant's potential future access to guns. "I

think we've read about people like you who get

despondent, who have an affinity for guns ...." We reject

defendant's claim that the court failed to consider his

individual circumstances.

Nor do we find any merit in defendant's claim that

the court was biased against those who own guns. The

court's careful explanation of its reasoning displayed no

such bias. Instead, the court's reasoning was closely

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tethered to defenda nt's individual characteristics a nd the

circumstances of his offense. The evidence at trial

demonstr ated t h at defendant was an gry and upset on the

evening of the incident and exhibited no concern for the

two women and two children who were exposed to him

carrying around an assault weapon with a large capacity

magazine inserted into it. We consider the court's

characterization of defendant's conduct a s "scary" to be an

under statement. The court's concern about defenda nt's

future access to guns was not an outgrowth of a ny "bias"

but simply a reason able concern based on defendant's

individual characteristics and his conduct.

We also conclude that the court's possible

misimpression that defendant was opposed to plea ding

guilty to a felony did not play a role in its decision not to

reduce the conviction to a misdemeanor. Mter

defendant's trial counsel insisted that defendant h ad been

willing to plead to a felony, the court put aside its

impression and n oted that th e determinative question

was "whether or not conduct is felonious." The court

remained convinced that defe ndant's conduct was "very

scary" and therefore merited felony punishment. Since

the court's view of the nature of defendant's conduct was

not base d on the court's impression regarding defendant's

willingness to plead guilty to a felony, the court's

impression had no impact on its decision not to reduce the

conviction to a mis demeanor.

IV. Disposition

The order is affirmed.

Mihara, J.

WE CONCUR:

Elia, Acting P. J.

Bamattre-Manoukian, J.

SUPREME COURT

F I LED

FEB 21 2018

Court of Appeal, Sixth Appellate District- No. H042771

Jorge Navarrete Clerk

8246497

Deputy

IN THE SUPREME COURT OF CALIFORNIA

En Bane

THE PEOPLE, Plaintiff and Respondent,

v.

JOHN WESSLEY GLEASON, Defendant and Appellant.

The petition for review is denied.

CANTIL-SAKAUYE

Chief Justice