Filed 11/6/13




                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

CLAY PARKER, as Sheriff, etc., et al.,
                                                             F062490, F062709
        Plaintiffs and Respondents,
                                                      (Super. Ct. No. 10CECG02116)
                  v.

STATE OF CALIFORNIA, et al.,                                     OPINION

        Defendants and Appellants.



        APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Judge.
        Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney
General, Peter A. Krause and Ross C. Moody, Deputy Attorneys General, for Defendants
and Appellants.
        Michel & Associates, C.D. Michel, Clinton B. Monfort, and Anna M. Barvir for
Plaintiffs and Respondents.
        Bruce Colodny; and Stephen P. Halbrook for FFLGuard LLC and Gun Owners of
California, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.
        Baker, Manock & Jensen, Douglas Blaine Jensen; and Richard E. Gardiner for
Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and
Respondents.




                               SEE DISSENTING OPINION
       This appeal presents a facial challenge under the void-for-vagueness doctrine to a
statutory scheme within the Penal Code1 regulating the sale, display, and transfer of
“handgun ammunition.” The statutes at issue, former sections 12060, 12061 and 12318,
defined “handgun ammunition” as ammunition “principally for use” in handguns as
opposed to rifles and other firearms. In the proceedings below, respondents challenged
the constitutionality of these statutes on grounds that they failed to provide adequate
notice of the conduct proscribed and lacked sufficiently definite guidelines to prevent
arbitrary or discriminatory enforcement by police.
       The trial court agreed with respondents, declaring the challenged statutes
constitutionally invalid and issuing a permanent injunction against their enforcement.
Appellants contend the statutes are not unconstitutional because it is possible to conceive
of circumstances in which the statutory language would not be vague. These issues are
addressed in the first part of our opinion. The second part of the opinion pertains to the
trial court’s partial denial of a motion to tax costs filed by appellants after the permanent
injunction was issued.2 We affirm the judgment in full.
                                               I.
                   FACTUAL AND PROCEDURAL BACKGROUND
Statutory Scheme
       Former sections 12060, 12061, and 12318 were enacted as part of Assembly Bill
No. 962 (2009-2010 Reg. Sess.), known as the Anti-Gang Neighborhood Protection Act
of 2009, which implemented a statutory scheme for the transfer and handling of
“handgun ammunition.” (Stats. 2009, ch. 628, §§ 1-2, 7.) In 2012, Senate Bill 1080


       1   All statutory references are to the Penal Code unless otherwise indicated.
       2F062709 is the appeal of the partial denial of the motion to tax costs. We
consolidated F062490 with F062709 for purposes of briefing, oral argument, and
decision.



                                              2.
renumbered and reconfigured provisions of the Penal Code relating to deadly weapons,
including the challenged statutes. (Stats. 2010, ch. 711, §§ 4, 6.) In their briefing, the
parties refer to the challenged statutes by their original section numbers. We will discuss
the current versions of all relevant statutes and refer to repealed provisions as former
sections of the Penal Code.
       A handgun is any pistol, revolver or firearm capable of being concealed upon the
person. (§ 16640, subd. (a).) The terms “pistol,” “revolver,” and “firearm capable of
being concealed upon the person” are defined in section 16530, which incorporates the
language of former section 12001, subdivision (a)(1). (Stats. 2007, ch. 163, § 1.) These
terms “apply to and include any device designed to be used as a weapon, from which is
expelled a projectile by the force of any explosion, or other form of combustion, and that
has a barrel less than 16 inches in length. These terms also include any device that has a
barrel 16 inches or more in length which is designed to be interchanged with a barrel less
than 16 inches in length.” (§ 16530, subd. (a).)
       Section 16650 combines the language of former sections 12060, subdivision (b),
and 12323, subdivision (a), to provide the definition of “handgun ammunition.” (See
Stats. 2009, ch. 628, § 2; Stats. 1995, ch. 263, § 3.) As used in the statutory scheme,
“‘handgun ammunition’ means ammunition principally for use in pistols, revolvers, and
other firearms capable of being concealed upon the person, notwithstanding that the
ammunition may also be used in some rifles.” (§ 16650, subd. (a), italics added.)
       The definition of a “handgun ammunition vendor” is set forth in section 16662,
which corresponds to former section 12060, subdivision (c). (Stats. 2009, ch. 628, § 2.)
A “‘handgun ammunition vendor’ means any person, firm, corporation, dealer, or any
other business enterprise that is engaged in the retail sale of any handgun ammunition, or
that holds itself out as engaged in the business of selling any handgun ammunition.”
(§ 16662.)



                                              3.
       These definitional statutes, particularly section 16650, are essential to the
proscriptive language of section 30312 (former § 12318) and sections 30345 through
30365 (former § 12061), all of which impose restrictions on the sale, delivery, and
transfer of handgun ammunition. Section 30312 states that “the delivery or transfer of
ownership of handgun ammunition may only occur in a face-to-face transaction with the
deliverer or transferor being provided bona fide evidence of identity from the purchaser
or other transferee.” (§ 30312, subd. (a).) Limited exceptions are provided for law
enforcement personnel and other qualified individuals. (Id., subd. (b).) A violation of
section 30312 is a misdemeanor offense. (Id., subd. (c).)
       Sections 30345 through 30365 regulate the activities of handgun ammunition
vendors. For example, a vendor must not allow any employee who cannot lawfully
possess a firearm to “handle, sell, or deliver handgun ammunition in the course and scope
of employment.” (§ 30347.) Handgun ammunition must also remain inaccessible to
customers unless they are being assisted by the vendor or a qualified employee.
(§ 30350.)
       When handgun ammunition is sold or otherwise transferred, the vendor must
record multiple categories of information related to the transaction. This process includes
obtaining from the buyer or transferee their date of birth, address, telephone number,
driver’s license number, signature, and right thumbprint. (§ 30352, subd. (a).) Vendors
must maintain handgun ammunition sales transaction records and make them available
for inspection in accordance with the provisions of sections 30355, 30357, 30360 and
30362. A violation of section 30352, 30355, 30360, or 30362 is a misdemeanor.
(§ 30365, subd. (a).)
Ammunition – Calibers and Cartridges
       The parties’ briefing provides a technical overview of ammunition and its usage in
different types of firearms. There appears to be a general consensus between both sides
as to the following information.

                                             4.
       Modern rifles and handguns fire ammunition that consists of three components: a
metal casing that holds a bullet, a propellant or powder, and a primer to ignite the
powder. The metal casing and its component parts are known as a cartridge. Three
terms, in order of specificity, are commonly used to describe the loaded cartridge:
ammunition, caliber, and the cartridge’s given name, such as “.357 Magnum” or “.257
Roberts.”
       Relying on the Glossary of the Association of Firearm and Toolmark Examiners,
the parties agree that “ammunition” means “one or more loaded cartridges consisting of a
primed case, propellant, and with one or more projectiles.” The word “caliber” has
multiple definitions. When applied to a firearm, it refers to the diameter of the bore of a
gun, usually measured in hundredths or thousandths of an inch and typically written as a
decimal fraction. (Merriam-Webster’s Collegiate Dict. (11th ed. 2011) p. 174.) When
applied to ammunition, it can be defined as “the diameter of a bullet or other projectile”
(Ibid) or “[a] numerical term, without the decimal point, included in a cartridge name to
indicate the nominal bullet diameter.” (Glossary of the Assn. of Firearm and Toolmark
Examiners (2d ed. 1985) p. 32.) There are many different cartridges within a given
caliber of ammunition.
Lawsuit
       In June 2010, the Sheriff for the County of Tehama, Herb Bauer Sporting Goods,
Inc., the California Rifle and Pistol Association Foundation, Able’s Sporting, Inc., RTG
Sporting Collectibles, LLC, and Stephen Stonecipher (collectively respondents) filed a
complaint for declaratory and injunctive relief which alleged, in pertinent part, that
former sections 12060, 12061 and 12318 were void for vagueness under the due process
clause of the Fourteenth Amendment.3 The complaint was answered by the State of
       3 Herb Bauer Sporting Goods, Inc., alleged a second cause of action challenging
the statutes as void as applied to it and respondents collectively sought a writ of mandate
which was pled as the third cause of action. Neither is at issue in this appeal.


                                             5.
California, the Attorney General for the State of California, and the California
Department of Justice (collectively appellants).
       Respondents claimed that because virtually all calibers of ammunition can be used
safely in both rifles and handguns, the challenged statutes failed to provide any standard
whereby a person of ordinary intelligence could understand and determine whether a
given caliber of ammunition is “principally for use” in handguns. As such, law
enforcement officials would have discretion to subjectively interpret and apply the law,
i.e., the ability to decide for themselves which calibers of ammunition qualify as
“handgun ammunition.” Appellants admitted in their Answer that some calibers can be
used in both rifles and pistols, but generally denied there was any confusion surrounding
which calibers are “principally for use” in handguns or that the statutes conferred
unbridled discretion upon law enforcement officers.
       Respondents propounded a special interrogatory to appellants asking for a list of
the types of ammunition they considered to be “handgun ammunition” under the statutory
scheme. Appellants objected to the word “types” as being vague and ambiguous, but
identified 11 different calibers. As discovery progressed, respondents’ expert opined that
ammunition is more accurately distinguished by cartridge type, rather than by caliber,
because within each caliber there is “a wide range of cartridge lengths, bullet weights,
velocity, power, applications and true bullet diameters.” Appellants’ expert later
identified 16 cartridges as being “handgun ammunition” within the meaning of the
challenged statutes.
       In December 2010, respondents filed a motion for summary judgment and
alternatively moved for summary adjudication of the separate causes of action in the
complaint. The parties agreed to an expedited briefing schedule in order to allow the
motion to be heard before the challenged statutes took effect in February 2011.




                                             6.
Motion for Summary Judgment/Summary Adjudication
Respondents’ Evidence
       Respondents moved for summary adjudication of the first cause of action on
grounds that the challenged statutes were unconstitutionally vague for failure to
sufficiently define “handgun ammunition,” i.e., the concept of ammunition that is
“principally for use” in handguns as opposed to other types of firearms. The motion was
supported by the following evidence:
   1. The legislative history of Senate Bill No. 1276 (1993-1994 Reg. Sess.), a failed
       measure introduced in 1994 to amend and add Penal Code sections relating to
       ammunition. Respondents highlighted the following comments from the Bill
       Analysis conducted by the Senate Committee on the Judiciary regarding the
       “principally for use” language that now appears in section 16650: “It may be
       assumed that many ammunition calibers are suitable for both rifles and handguns.
       Without additional statutory guidance, it may be very difficult for dealers to
       determine which ammunition is ‘handgun ammunition’….”
   2. Hundreds of pages of reference material pertaining to firearms and ammunition,
       including excerpts from “Cartridges of the World,” a guide to over 1,500 firearm
       cartridges.
   3. Appellants’ discovery responses containing the list of 11 calibers of ammunition
       they considered to be “handgun ammunition.” The calibers identified were as
       follows: “.45, 9mm, 10mm, .40, .357, .38, .44, .380, .454, .25, [and] .32.”
   4. Transcript excerpts from the deposition of appellants’ firearms and ammunition
       expert, Blake Graham, who verified discovery responses containing the
       aforementioned list of 11 calibers in his capacity as Special Agent Supervisor for
       the California Department of Justice, Bureau of Firearms.
   5. The declaration of respondents’ firearms and ammunition expert, Stephen Helsley,
       the former Chief of the California Department of Justice (DOJ) Bureau of Forensic

                                             7.
   Services and former Assistant Director of the DOJ Investigation and Enforcement
   Branch. Mr. Helsley attested that virtually all modern ammunition can be used
   interchangeably in a rifle or a handgun, and whether a given cartridge is used in
   one or the other is ultimately determined by the “needs and desires of the end
   user.” He further declared: “There is no generally accepted definition of ‘handgun
   ammunition,’ nor any commonly understood delineation between ‘handgun
   ammunition’ and other ammunition used in the firearms industry, let alone one
   that allows [a person] to determine whether certain cartridges are ‘principally for
   use’ in handguns.”
6. Declarations by executive officers of five out-of-state ammunition vendors who
   sell to California residents, each of whom declared that they did not know and
   could not determine what ammunition is “principally for use” in handguns under
   the challenged statutes.
7. Declarations by Tom Allman, the Sheriff-Coroner for the County of Mendocino,
   and Clay Parker, who at the time was the Sheriff for the County of Tehama. Both
   officials declared that they did not know and were incapable of determining what
   ammunition is “principally for use” in handguns, and therefore could not equitably
   enforce the challenged provisions of the statutory scheme.
8. The declaration of respondent Steven Stonecipher, a Fresno County resident who
   had transferred and received ammunition by mail within California.
   Mr. Stonecipher declared that he did not know how to interpret the challenged
   statutes, nor was he aware “of any source from which [he] could determine what
   ammunition suitable for use in both rifles and handguns is principally for use in a
   handgun.”
9. The declaration of Barry Bauer, president of Herb Bauer Sporting Goods, Inc., a
   vendor in Fresno County that sells hundreds of distinct ammunition cartridges that
   can be used interchangeably between handguns and rifles. Mr. Bauer declared that

                                         8.
      he did not know and could not determine what ammunition is “principally for use”
      in handguns within the meaning of the challenged statutes.
Appellants’ Evidence
      Appellants submitted the following evidence in support of their opposition to the
motion for summary judgment/summary adjudication:
      1. Transcript excerpts from the deposition of Barry Bauer wherein he testified
          that in his personal experience, the following cartridges were used more often
          in handguns than in rifles: .45 ACP, .45 GAP,4 9-millimeter Luger, 10-
          millimeter Smith & Wesson, .40 Smith & Wesson, .25 ACP, .32 ACP, and
          .380 ACP.
      2. Transcript excerpts from the deposition of respondents’ firearms and
          ammunition expert, Stephen Helsley, wherein he testified that in his personal
          experience, .25 ACP cartridges were used more often in handguns than in
          rifles.5
      3. Transcript excerpts from the deposition of then Tehama County Sheriff Clay
          Parker wherein he testified that in his personal experience, .40-caliber
          ammunition was used more often in handguns than in long guns, as were the
          following cartridges: .45 ACP, .25 ACP, .32 ACP, .38 Special, .40 caliber, and
          .380 ACP. Sheriff Parker also testified that he had never visited a gun dealer
          or ammunition vendor in Tehama County to determine compliance with



      4 ACP is the acronym for automatic Colt pistol; GAP is the acronym for Glock
automatic pistol.
      5 Appellants’ opposition papers claimed Mr. Helsley also gave similar testimony
with respect to the following cartridges: .45 GAP, 9-millimeter Federal, 10-millimeter
Auto, .357 SIG, .44 Auto Mag and .38 Smith & Wesson. The record on appeal does not
appear to contain deposition transcript excerpts corresponding to such testimony.



                                            9.
   California’s gun laws. He left such enforcement duties to the California
   Department of Justice.
4. Transcript excerpts from the deposition of respondent Steven Stonecipher
   wherein he testified that in his experience, the following cartridges were used
   more often in handguns: .45 ACP, .380 ACP, 9-millimeter Luger, 10-
   millimeter Smith & Wesson, .40 Smith & Wesson, .25 ACP, .32 ACP, .357
   SIG and .454 Casull.
5. The declaration of the appellants’ firearms expert, Blake Graham, wherein he
   identified the following 16 cartridges as “handgun ammunition” within the
   meaning of the challenged statutes: .45 ACP (also known as 45 Auto and 45
   Automatic + P), .45 GAP, 9-millimeter Luger (also known as 9x19mm, 9mm
   Parabellum and 9mm Luger +P), 10-millimeter Automatic, 40 S&W
   Automatic, .357 Magnum (also known as 357 Smith & Wesson Magnum),
   .357 SIG, .38 Special (also known as 38 Special + P, 38 Smith & Wesson
   Special, and .38 Colt Special), .38 Super (also known as 38 Super Automatic
   and 38 Super Automatic + P), .44 Remington Magnum (44 Magnum), .44
   Smith & Wesson Special, .44 Auto Mag, .380 ACP (also known as 380 Auto,
   9mm Kurz, 9 x 17 mm), .454 Casull, .25 ACP (also known as 25 Auto) and .32
   ACP (also known as 32 Auto). According to Mr. Graham, very few long guns
   fire these particular cartridges. However, he acknowledged there were other
   cartridges for which he could not determine if they were “principally for use”
   in handguns without engaging in further research and analysis (e.g., all .22-
   caliber ammunition).
   Mr. Graham’s declaration described the methodology he used to compile the
   list of 16 cartridges: “The starting point for my analysis was the DOJ’s Dealer
   Record of Sale and Automated Firearm System databases, which contain
   information on all handguns purchased or transferred in California each year.

                                    10.
               Specifically, I asked an analyst to run a report for me from those databases that
               reflected how many handguns in each particular caliber were sold over the last
               five years. The report that was generated was used as a starting point to show
               which handgun calibers have been most common in terms of handgun sales
               over the past several years. My experience and expertise was then applied to
               narrow the list of calibers down to those cartridges that are principally used in
               pistols and revolvers.”
        6. In further support of their opposition, appellants requested judicial notice of
               printouts from websites of certain vendors who market cartridges as “handgun
               ammunition” and “rifle ammunition.”
        Respondents’ objections to the request for judicial notice were overruled by the
trial court.
Trial Court’s Ruling
        The trial court granted respondents’ motion for summary adjudication of their
cause of action for declaratory and injunctive relief, which it characterized as a “facial
vagueness challenge.” The term “handgun ammunition” was held to be
unconstitutionally vague as used within former sections 12060, 12061, and 12318, thus
invalidating the statutory scheme regulating the display, transfer, and sale of such
ammunition. A two-part analysis formed the basis for this ruling.
        The trial court first sought to determine whether the language of the challenged
statutes was sufficiently definite to provide adequate notice of the conduct it proscribed.
After examining relevant case law, available legislative history, and the text of the
provisions in question, the court found the Legislature’s definition provided “no objective
way or method” for an ordinary citizen or ammunition vendor to determine whether a
given caliber or cartridge is used more often in handguns than in rifles or other firearms.
“Consequently, [former sections] 12060, 12061 and 12318 fail[ed] to meet the first



                                                 11.
requirement for a constitutionally valid criminal statute – that the statute be definite
enough so that ordinary people can understand what conduct is prohibited.”
       Next, the court considered whether the statutes contained minimal standards or
guidelines to govern law enforcement officers. None were found. In the trial court’s
view, the Legislature “simply left it open to the personal judgment call and subjective
understanding of each individual law enforcement officer to determine if a particular
caliber and/or cartridge of ammunition is ‘handgun ammunition’ under the definition in
[the statutory scheme] and to subjectively apply that [definition] to each issue of an
ammunition sale or transfer that comes to the attention of that law enforcement officer.”
       Pursuant to the summary adjudication ruling, a permanent injunction was entered
effective February 2011 barring enforcement of the challenged statutes. Respondents
were awarded their costs of suit as the prevailing party. Appellants’ timely appeal
followed.
                                STANDARD OF REVIEW
       Orders granting summary judgment and summary adjudication are reviewed de
novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Lafferty v. Wells
Fargo Bank (2013) 213 Cal.App.4th 545, 556.) The same is true for all questions of law.
(American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570, 575.) “The interpretation of
a statute and the determination of its constitutionality are questions of law.” (People v.
Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.)
Accordingly, we apply the de novo standard of review.
                                       DISCUSSION
       We must answer two questions in this portion of the appeal. First, what is the
appropriate standard for analyzing a facial challenge to the constitutionality of a criminal
statute in the context of the void-for-vagueness doctrine? Second, are the challenged
statutes unconstitutionally vague?



                                             12.
       To answer the first question, we examine a number of pivotal United States
Supreme Court opinions and attempt to harmonize the holdings of those cases with
California law, despite a lack of clarity in both lines of authority. Outside of disputes
involving First Amendment rights, and to a lesser extent abortion, facial challenges (as
opposed to “as applied” challenges) are often evaluated using a standard articulated in
United States v. Salerno (1987) 481 U.S. 739 (Salerno). Under the Salerno standard, the
challenger must establish “that no set of circumstances exists under which the [statute]
would be valid.” (Salerno, at p. 745.) Appellants contend the Salerno standard governs
this case.
       The Salerno standard is prevalent in federal court, but not universally controlling.
Both the United States and California Supreme Courts have found certain circumstances
warrant heightened scrutiny of legislative enactments, and thus a more lenient standard of
review. Facial challenges of the latter variety are permitted “[w]hen vagueness
permeates the text” of a criminal statute that contains no scienter requirement and
implicates constitutionally protected activity. (City of Chicago v. Morales (1999) 527
U.S. 41, 55 (plur. opn. of Stevens, J.) (Morales); see also, Kolender v. Lawson (1983) 461
U.S. 352, 358, fn. 8 (Kolender).) California’s version of the alternative standard asks
whether a statute is constitutionally invalid “in the generality or great majority of cases.”
(San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 673
(San Remo), italics in original.)
       We do not believe the California Supreme Court has ever endorsed the Salerno
standard, nor are we entirely convinced that Salerno cannot be reconciled with the
heightened scrutiny traditionally applied to criminal statutes under the void-for-
vagueness doctrine insofar as an inherently vague statute will render the law
unconstitutional in all circumstances. In any event, we reject appellants’ argument that
the challenged statutes are valid so long as we can conceive of at least one scenario in
which the “principally for use” language would not be vague. Under this interpretation

                                             13.
of the Salerno standard, the existence of a single cartridge (out of hundreds or thousands)
that is used more often in handguns than in rifles would allow these criminal statutes to
pass constitutional muster even if vagueness “permeates the text” of their provisions and
leaves citizens of ordinary intelligence without fair notice of the conduct proscribed. If
the Salerno standard actually compels such a result, it surely conflicts with the basic
requirements of due process in this instance. Therefore, we apply the principles outlined
by the United States Supreme Court in opinions such as Kolender and Morales, discussed
infra, and apply California’s more lenient standard to determine whether the statutes are
vague “in the generality or great majority of cases.”
       As to the second question, our analysis follows traditional rules of statutory
interpretation and the two-pronged test for vagueness that was utilized by the trial court.
We ultimately conclude the statutes lack the degree of certainty required by constitutional
guarantees of due process.
Facial vs. “As Applied” Challenges
       “A facial challenge to the constitutional validity of a statute or ordinance considers
only the text of the measure itself, not its application to the particular circumstances of an
individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) The relief
typically sought is total invalidation of the law. Therefore, cases hold that the challenger
must demonstrate “a present total and fatal conflict with applicable constitutional
prohibitions.” (Ibid., citations and internal quotations marks omitted.)
       In contrast, an “as applied” challenge “involves an otherwise facially valid
measure that has been applied in a constitutionally impermissible manner.” (California
Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 277 (conc. & dis. opn. of
Cantil-Sakauye, C.J.) (Matosantos).) This type of challenge “contemplates analysis of
the facts of a particular case or cases to determine the circumstances in which the statute
or ordinance has been applied and to consider whether in those particular circumstances



                                             14.
the application deprived the individual to whom it was applied of a protected right.”
(Tobe, supra, 9 Cal.4th at p. 1084.)
       Appellants note that facial challenges to legislation are disfavored. The United
States Supreme Court has identified several policy considerations in this regard. “Claims
of facial invalidity often rest on speculation. As a consequence, they raise the risk of
premature interpretation of statutes on the basis of factually barebones records. Facial
challenges also run contrary to the fundamental principle of judicial restraint that courts
should neither anticipate a question of constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” (Washington State Grange v. Washington State
Republican Party (2008) 552 U.S. 442, 450-451, internal citations and quotation marks
omitted.)
       While these principles apply to facial challenges in general, competing policy
concerns must be taken into account when an attack is made under the void-for-
vagueness doctrine. If a statute is objectively vague such that it cannot be understood by
ordinary citizens for whom it poses a threat of criminal liability, questions of
constitutional due process are neither speculative nor premature. This explains why the
high court has been willing to resolve facial challenges for at least the better part of a
century, albeit on a limited basis. (See, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451,
453 (Lanzetta) [striking down a criminal statute as unconstitutionally vague on its face];
Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 (Connally) [same].)
Void-For-Vagueness Doctrine
       “The requirement of a reasonable degree of certainty in legislation, especially in
the criminal law, is a well established element of the guarantee of due process of law.”
(People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389 (Caswell), quoting In re
Newbern (1960) 53 Cal.2d 786, 792.) This is the foundation of the void-for-vagueness
doctrine. The doctrine arises from due process protections under the United States and

                                             15.
California Constitutions. (Ibid.; U.S. Const., 5th & 14th Amends.; Cal. Const., art. I,
§ 7.) “The vagueness may be from uncertainty in regard to persons within the scope of
the [statute] . . . or in regard to the applicable tests to ascertain guilt.” (Winters v. New
York (1948) 333 U.S. 507, 515-516.)
       A commonly cited formulation of the doctrine is stated in Connally. There, a
criminal statute punishing contractors who paid their workers less than the “‘current rate
of per diem wages in the locality where the work is performed’” was found
unconstitutionally vague on its face. (Connally, supra, 269 U.S. at p. 393.) The court
held that “a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” (Id. at p. 391.)
       In California, criminal statutes must satisfy two requirements to withstand a facial
vagueness challenge under the due process clause. “First, a statute must be sufficiently
definite to provide adequate notice of the conduct proscribed.” (Caswell, supra, 46
Cal.3d at p. 389.) “Second, a statute must provide sufficiently definite guidelines for the
police in order to prevent arbitrary and discriminatory enforcement.” (Id. at p. 390.)
       These basic requirements are distilled from several decades of jurisprudence. (See
Caswell, supra, 46 Cal.3d at pp. 389-390.) As stated in Grayned v. City of Rockford
(1972) 408 U.S. 104 (Grayned), “[v]ague laws offend several important values. First,
because we assume that man is free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning.” (Id. at p. 108.)
       “Second, if arbitrary and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and discriminatory

                                              16.
application. Third… [u]ncertain meanings inevitably lead citizens to steer far wider of
the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”
(Grayned, supra, 408 U.S. at pp. 108-109, footnotes and internal quotation marks
omitted.)

Standard of Review for Facial Challenges - U.S. Supreme Court Cases

       A. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
          455 U.S. 489
       The case of Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc.
(1982) 455 U.S. 489 (Hoffman Estates) involved a local ordinance requiring businesses to
obtain a license in order to sell items “‘designed or marketed for use with illegal cannabis
or drugs.’” (Hoffman Estates, at p. 491.) A shop owner challenged the facial validity of
the statute on grounds of unconstitutional vagueness and overbreadth. (Ibid.) The
Supreme Court rejected both arguments.
       The opinion is noteworthy for its attempt to establish an analytical framework for
certain types of facial challenges: “In a facial challenge to the overbreadth and vagueness
of a law, a court’s first task is to determine whether the enactment reaches a substantial
amount of constitutionally protected conduct. If it does not, then the overbreadth
challenge must fail. The court should then examine the facial vagueness challenge and,
assuming the enactment implicates no constitutionally protected conduct, should uphold
the challenge only if the enactment is impermissibly vague in all of its applications.”
(Hoffman Estates, supra, 455 U.S. at pp. 494-495, italics added & fns. omitted.) The
Supreme Court also emphasized that “[i]n reviewing a business regulation for facial
vagueness…the principal inquiry is whether the law affords fair warning of what is
proscribed.” (Id. at p. 503.)
       Applying the test described above, the Court first determined the ordinance did not
reach constitutionally protected conduct. (Hoffman Estates, supra, 455 U.S. at p. 497.)
Consequently, a finding of unconstitutional vagueness required proof that the law was

                                            17.
“impermissibly vague in all of its applications.” (Ibid.) Notwithstanding this
pronouncement, the Court acknowledged that the standards for evaluating vagueness
should not be “mechanically applied,” and “[t]he degree of vagueness that the
Constitution tolerates…depends in part on the nature of the enactment. Thus, economic
regulation is subject to a less strict vagueness test because its subject matter is often more
narrow…”. (Id. at p. 498.)
       There is “greater tolerance of enactments with civil rather than criminal penalties
because the consequences of imprecision are qualitatively less severe… [A] scienter
requirement may [also] mitigate a law’s vagueness, especially with respect to the
adequacy of notice to the complainant that his conduct is proscribed.” (Hoffman Estates,
supra, 455 U.S. at pp. 498-499, fns. omitted.) Although characterized as “quasi-
criminal,” the ordinance at issue in Hoffman Estates contained a scienter requirement and
imposed only civil penalties. (Id. at p. 499.) The ordinance was also found to be
sufficiently clear on its face. (Id. at p. 501.) Therefore, any “speculative danger of
arbitrary enforcement” did not render the ordinance void for vagueness. (Id. at p. 503.)
       Despite use of the language “impermissibly vague in all of its applications,”
Hoffman Estates recognizes the existence of a more lenient standard of review for
criminal statutes, especially when those statutes implicate constitutionally protected
conduct. This was confirmed in the subsequent opinion of Kolender v. Lawson.
       B. Kolender v. Lawson (1983) 461 U.S. 352
       The defendant in Kolender was convicted under a section of the California Penal
Code requiring persons who loiter or wander on streets to provide “credible and reliable”
identification when requested by a police officer. (Kolender, supra, 461 U.S. at p. 353.)
The Supreme Court found the statute unconstitutionally vague on its face within the
meaning of the due process clause of the Fourteenth Amendment for failure to clarify
what was contemplated by the term “credible and reliable.” (Id. at pp. 353-354.) The
opinion discusses two aspects of the void-for-vagueness doctrine – adequate notice to

                                             18.
citizens and minimal guidelines to govern law enforcement – and places greater emphasis
on the latter. (Id. at p. 358.)
       “Where the [L]egislature fails to provide such minimal guidelines, a criminal
statute may [improperly] permit a standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal predilections.” (Kolender, supra, 461
U.S. at p 358, citation & quotation marks omitted.) The language of the anti-loitering
statute created the potential for arbitrary suppression of First Amendment liberties and
also implicated the constitutional right to freedom of movement. (Ibid.) As a result, “the
full discretion accorded to the police to determine whether the suspect ha[d] provided a
‘credible and reliable’ identification necessarily entrust[ed] lawmaking to the moment-to-
moment judgment of the policeman on his beat… and furnishe[d] a convenient tool for
harsh and discriminatory enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure.” (Id. at p. 360, citations and quotation marks
omitted.)
       With regard to the standard of review, the majority opinion in Kolender makes a
point to clarify its use of the phase “impermissibly vague in all of its possible
applications” as stated in Hoffman Estates. “First…we permit a facial challenge if a law
reaches ‘a substantial amount of constitutionally protected conduct.’ Second, where a
statute imposes criminal penalties, the standard of certainty is higher. This concern has,
at times, led us to invalidate a criminal statute on its face even when it could conceivably
have had some valid application.” (Kolender, supra, 461 U.S. at p. 358, fn. 8, citations
omitted.) The anti-loitering statute was held unconstitutional despite at least one set of
circumstances in which compliance with the requirement to provide “credible and
reliable” identification would not be vague, i.e., a citizen’s absolute refusal to provide
any identification at all. (Id. at pp. 371-372 (dis. opn. of White J..)




                                              19.
       C. United States v. Salerno (1987) 481 U.S. 739
       The Salerno case involved a facial challenge to the Bail Reform Act (18 U.S.C.
§§ 3141-3150, 3156 (1982 & Supp. III 1993)). (Salerno, supra, 481 U.S. at p. 746.) The
relevant provisions of the Act authorized pretrial detention of arrestees upon a judicial
officer’s determination that alternative procedures would not “reasonably assure the
appearance of the person as required and the safety of any other person and the
community.” (Id. at p. 742.) The criminal defendants who challenged the Act argued
these provisions allowed pretrial punishment in violation of their due process rights under
the Fifth Amendment and violated the excessive bail clause of the Eighth Amendment.
(Id. at p. 746.)
       The Salerno opinion is best known not for its evaluation of the Bail Reform Act,
but for a statement made prior to its analysis of the merits. The majority stated: “A facial
challenge to a legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid.” (Salerno, supra, 481 U.S. at p. 745.) The provisions at
issue were ultimately found to be constitutional.
       The Salerno opinion has received “severe and pervasive criticism” for its
description of an unqualified “no set of circumstances” standard for facial constitutional
challenges. (Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule
Requirement (1998) 48 Am.U. L.Rev. 359, 372.) Many courts and legal scholars agree
that in practical application, the standard will almost always be impossible to satisfy.
(See, e.g., Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health (4th Cir. 2002)
317 F.3d 357, 372, fn. 4 (dis. opn. of King, J.) [“In United States v. Salerno … the
Supreme Court articulated a ‘no set of circumstances’ test that would, if applicable, make
a facial challenge virtually impossible to win. However, the Salerno doctrine is an
embattled one at best, and its continuing viability is the subject of intense debate”]; see



                                             20.
also, Dorf, Facial Challenges to State and Federal Statutes (1994) 46 Stan. L.Rev. 235,
236-240.)
       In 1996, the United States Supreme Court denied a petition for certiorari in a case
entitled Janklow v. Planned Parenthood, Sioux Falls Clinic (1996) 517 U.S. 1174,
[116 S.Ct. 1582]. Justice John Paul Stevens issued a concurring memorandum in
conjunction with the denial of certiorari for the sole purpose of criticizing the language
used in Salerno. He wrote that the “no set of circumstances” statement “was unsupported
by citation or precedent…[,] does not accurately characterize the standard for deciding
facial challenges, and neither accurately reflects the Court’s practice with respect to facial
challenges, nor is it consistent with a wide array of legal principles.” (Janklow, supra,
116 S.Ct. at p. 1583, citations and quotations omitted.) Justice Stevens further noted this
“rigid and unwise dictum has been properly ignored in subsequent cases….” (Ibid.)
       D. City of Chicago v. Morales (1999) 527 U.S. 41
       In Morales, a plurality of the United States Supreme Court struck down an anti-
loitering statute as facially unconstitutional without considering whether any set of
circumstances existed under which the statute would be valid. The plurality opinion also
addressed the question of whether, and to what extent, a facial challenge could be
considered outside the context of the First Amendment. (Morales, supra, 527 U.S. at
pp. 52-53.)
       Citing Kolender, the plurality’s analysis begins by noting that “even if an
enactment does not reach a substantial amount of constitutionally protected conduct, it
may be impermissibly vague because it fails to establish standards for the police and
public that are sufficient to guard against the arbitrary deprivation of liberty interests.”
(Morales, supra, 527 U.S. at p. 52.) The City of Chicago’s anti-loitering ordinance
implicated the right to freedom of movement, which is a liberty interest protected by the
due process clause of the Fourteenth Amendment. (Id. at p. 53.) After describing this
liberty interest in greater detail, the opinion states: “it is clear that the vagueness of this

                                               21.
enactment makes a facial challenge appropriate. This is not an ordinance that simply
regulates business behavior and contains a scienter requirement. It is a criminal law that
contains no mens rea requirement and infringes on constitutionally protected rights.
When vagueness permeates the text of such a law, it is subject to facial attack.” (Id. at
p. 55, citations, quotation marks & fn. omitted.)
       Both aspects of the void-for-vagueness doctrine justified a facial challenge to the
ordinance. With respect to the fair notice requirement, the Court reiterated that “[n]o one
may be required at peril of life, liberty or property to speculate as to the meaning of penal
statutes.” (Morales, supra, 527 U.S. at p. 58, quoting Lanzetta, supra, 306 U.S. at p.
453.) “The Constitution does not permit a legislature to ‘set a net large enough to catch
all possible offenders, and leave it to the courts to step inside and say who could be
rightfully detained, and who should be set at large.’” (Morales, 527 U.S. at p. 60.) The
broad sweep of the ordinance also violated the rule that legislatures must establish
minimal guidelines to govern law enforcement. (Id. at pp. 60-62.)
       The Morales plurality rejected the Salerno standard. “To the extent we have
consistently articulated a clear standard for facial challenges, it is not the Salerno
formulation, which has never been the decisive factor in any decision of this Court,
including Salerno itself… Since we, like the Illinois Supreme Court, conclude that
vagueness permeates the ordinance, a facial challenge is appropriate.” (Morales, supra,
527 U.S. at p. 54, fn. 22.) However, three Justices endorsed the Salerno standard in
dissenting opinions. (Id. at pp. 78-83 (Scalia, J., dissenting) and at p. 111 (Thomas, J.,
joined by Rehnquist, C.J. and Scalia, C.J., dissenting).)
       Justice Stephen Breyer did not join in the plurality’s rejection of the Salerno rule,
but presented the following analysis in a concurring opinion: “I believe the ordinance
violates the Constitution because it delegates too much discretion to a police officer to
decide whom to order to move on, and in what circumstances. And I see no way to
distinguish in the ordinance’s terms between one application of that discretion and

                                              22.
another. The ordinance is unconstitutional, not because a policeman applied this
discretion wisely or poorly in a particular case, but rather because the policeman enjoys
too much discretion in every case. And if every application of the ordinance represents
an exercise of unlimited discretion, then the ordinance is invalid in all its applications.”
(Morales, supra, 527 U.S. at p. 71 (conc. opn. of Breyer, J.).)
       The plurality concluded it did not need to resolve the viability of the Salerno rule,
which it characterized as a species of third-party standing, because Morales arose from a
state court decision rather than a federal court decision. Under the plurality’s analysis,
state courts are not obligated to follow the Salerno standard. (Morales, supra, 527 U.S.
at p. 55, fn. 22 [“Whether or not it would be appropriate for federal courts to apply the
Salerno standard in some cases – a proposition which is doubtful – state courts need not
apply prudential notions of standing created by this Court. Justice Scalia’s assumption
that state courts must apply the restrictive Salerno test is incorrect as a matter of law;
moreover it contradicts ‘essential principles of federalism.’”], citation omitted.)
       E. Current State of the Law
       The United States Supreme Court has yet to resolve the question of whether a
definitive standard of review exists for all facial challenges outside of the First
Amendment context. (United States v. Stevens (2010) 559 U.S. 460, 472 [“Which
standard applies in a typical case is a matter of dispute…”].)
Standard of Review for Facial Challenges - California Cases
       California has historically recognized a distinction similar to the one expressed in
Hoffman Estates, Kolender, and Morales with respect to facially vague statutes. A
discussion found in Franklin Life Ins. Co. v. State Bd. of Equalization (1965) 63 Cal.2d
222, is illustrative. “[T]his court, in certain circumstances, will hold a statute
unconstitutional on its face without regard to the particular facts of the case… Thus when
the application of the statute is invalid in certain situations[,] we cannot enforce it in other
situations if such enforcement entails the danger of an uncertain or vague future

                                              23.
application of the statute. We have been particularly aware of fomenting such danger of
uncertainty in the application of a statute which would inhibit the exercise of a
constitutional right or impose criminal liability.” (Id. at pp. 227-228, citations omitted.)
       Another example, which is cited by respondents, is the summary of law set forth in
In re Marriage of Siller (1986) 187 Cal.App.3d 36 (Siller). “[A] statute is not facially
unconstitutional simply because it may not be constitutionally applied to some persons or
circumstances; at a minimum, its unlawful applications must be substantial and real when
judged in relation to the statute’s plainly legitimate sweep. Indeed, it has been said that a
statute will be upheld against facial attack if an appellate court can conceive of a situation
in which the statute could be applied without entailing an inevitable collision with, and
transgression of, constitutional provisions.” (Id. at pp. 48-49, citations omitted.)
       “Unless a statute facially tenders a present total conflict with constitutional
provisions, any overbreadth in a statute is ordinarily cured through case-by-case analysis
of the fact situations to which the statute is applied. However, an exception to this latter
rule has been recognized for statutes imposing criminal liability or impinging upon
constitutional rights (usually of free speech). Statutes of this latter variety may be
declared invalid in their entirety if piecemeal adjudication of the legality of the statute
would entail the vague or uncertain future application of the statute, thereby inhibiting the
exercise of constitutional rights.” (Siller, supra, 187 Cal.App.3d at p. 49, citations
omitted.)
       This line of authority is somewhat dated given that it ends in 1986. The waters
have been muddied in the wake of the Salerno opinion in 1987 and the Morales opinion
in 1999. The California Supreme Court has on several occasions recognized its own
inconsistency in using different levels of review for facial challenges. (See, e.g.,
Matosantos, supra, 53 Cal.4th at p. 278 [“[W]e have sometimes articulated differing
standards”]; Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126 (Ann S.) [“The



                                             24.
standard governing facial challenges has been a matter of some debate, within both this
court and the United States Supreme Court.”].)
       Under the strictest standard, a statute will not be considered facially invalid unless
its provisions present “a total and fatal conflict with applicable constitutional prohibitions
in all of its applications.” (East Bay Asian Local Development Corp. v. State of
California (2000) 24 Cal.4th 693, 709, quotation marks omitted; California Teachers
Assn. v. State of California (1999) 20 Cal.4th 327, 338; Tobe, supra, 9 Cal.4th at p.
1084.) Our district has characterized this standard as a “Salerno-type approach to facial
constitutional challenges in general.” (Sanchez v. City of Modesto (2006) 145
Cal.App.4th 660, 679 (Sanchez).) However, California’s strictest test is technically
distinct from the Salerno rule and consistent with the void-for-vagueness exceptions
recognized in Kolender and Morales. This is so because a criminal statute that is
objectively vague, such that ordinary citizens and police alike must necessarily guess at
its meaning and differ as to its application, violates due process as a matter of law. (See
Connally, supra, 269 U.S. at p. 391.) The inherent violation of due process renders the
statute totally and fatally in conflict with applicable constitutional prohibitions.6
       Under the more lenient standard, one may successfully challenge the facial
validity of a statute by demonstrating a conflict with constitutional protections “in the
generality or great majority of cases.” (San Remo, supra, 27 Cal.4th at p. 673, italics in
original; see also, Ann S., supra, 45 Cal.4th at p. 1126.) Our Supreme Court has also


       6 The Kolender opinion illustrates this point. There, the justices identified at least
one set of circumstances in which a violation of the challenged statute would
undoubtedly occur. A citizen’s outright refusal to provide any information or
identification to a police officer upon request could not possibly satisfy the statutory
requirement for production of “reasonable and credible” proof of one’s identity.
However, because the level of vagueness within the statutory language contravened the
basic requirements of due process, the law inevitably posed a total and fatal conflict with
constitutional prohibitions.



                                              25.
entertained facial challenges without any apparent distinction between the two standards.
(See e.g., Matosantos, supra, 53 Cal.4th at p. 278 [“It is unclear which standard the
majority employs [in this case]”]; People v. Heitzman (1994) 9 Cal.4th 189, 199-200
(Heitzman); Caswell, supra, 46 Cal.3d at pp. 389-401.) In Caswell, where appellants
challenged only the “facial validity” of a criminal statute, a two-pronged analysis was
employed under the void-for-vagueness doctrine without reference to either standard of
review. (Caswell, supra, at pp. 389-401.) The same occurred in Heitzman.
       There is inconsistency among the districts of the Court of Appeal as well. In
Sanchez, supra, this court was presented with a facial challenge made on equal protection
grounds to the California Voting Rights Act of 2001. (Sanchez, supra, 145 Cal.App.4th
at pp. 665-666, 678.) After discussing the import of Salerno, the opinion concludes
“there is no warrant for refusing to apply Salerno outside the First Amendment
overbreadth and abortion areas until a majority of the [United States] Supreme Court
gives clear direction to do so.” (Id. at p. 679.) One could argue this statement was
unnecessary, if not incorrect, considering the case did not involve a criminal statute, the
void-for-vagueness doctrine, or any issues of constitutional due process. In any event, we
subsequently took a different approach to facial invalidation by employing the “in the
generality or great majority of cases” standard in Building Industry Assn. of Central
California v. County of Stanislaus (2010) 190 Cal.App.4th 582. (Id. at pp. 590-591, 593
[assessing the facial validity of an agricultural conservation program adopted by
Stanislaus County].)
       Contrast Sanchez with the approach taken by the First District in County of
Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, which involved a facial challenge
to the constitutionality of an earlier version of Code of Civil Procedure section 1299 et
seq. (Id. at pp. 329, 337.) The appellate court dispensed with the standard of review
issue in a few short sentences: “[Real party in interest] insists that we must deny the
County’s petition unless no set of circumstances exists under which the law will be valid.

                                             26.
We think this is a more stringent test than that applied by the California Supreme Court.
We may not uphold the law simply because in some hypothetical situation it might lead to
a permissible result.” (Id. at p. 337, italics added, internal citations and quotation marks
omitted.)
       In summary, controversy over the proper analytical framework for facial
challenges is a recurring issue that has evaded resolution. Courts frequently avoid the
debate by concluding a given challenge fails under both the strict and more lenient
standards of review. (See, e.g., Browne v. County of Tehama (2013) 213 Cal.App.4th
704, 717; Coffman Specialties, Inc. v. Department of Transportation (2009) 176
Cal.App.4th 1135, 1154.) The present state of the law is thus uncertain. (Today’s Fresh
Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197, 218 [“The
standard for a facial constitutional challenge to a statute is exacting. It is also the subject
of some uncertainty…. [W]e need not settle the precise formulation of the standard
because under any of the versions we have articulated the due process claim [made by
appellant] would fail.”].)
The Criminal Statutes In Question Are Subject To Heightened Scrutiny In
Accordance With Hoffman Estates, Kolender and Morales
       Appellants contend the Salerno rule has been repeatedly applied in “firearms-
related” cases, thus implying our court would be far afield from a consensus view if we
used a different standard in this case. The persuasiveness of that argument is dubious,
considering the cases cited by appellants were all decided by federal courts of appeals in
circuits where Salerno has been adopted and/or recognized as binding precedent. (See,
e.g., GeorgiaCarry.Org, Inc. v. Georgia (11th Cir. 2012) 687 F.3d 1244, 1255, fn. 19
[“While Salerno is often criticized, its holding remains binding precedent, which we
faithfully apply here.”].) Under the doctrine of stare decisis, those courts are obligated to
apply the Salerno standard to all facial challenges, regardless of the constitutional
grounds upon which they are asserted or the underlying subject matter, except for in

                                              27.
cases involving the overbreadth doctrine “in the limited context of the First Amendment.”
(Salerno, supra, 481 U.S. at p. 745.)
       Furthermore, appellants have not identified any cases in which the California
Supreme Court has adopted the Salerno rule or otherwise equated its inflexible “no set of
circumstances” language with the standard of review for facial challenges. The strictest
standard has consistently been described as requiring that a statute’s provisions
“inevitably pose a present total and fatal conflict with applicable constitutional
prohibitions.” (Ann S., supra, 45 Cal.4th at p. 1126, quoting Pacific Legal Foundation v.
Brown (1981) 29 Cal.3d 168, 180-181.) Appellants rely on People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090 (Acuna), where the California Supreme Court cited and quoted
Hoffman Estates as standing for the principle that an unconstitutionally vague law is one
that is “impermissibly vague in all of its applications.” (Acuna, 14 Cal.4th at p. 1116,
italics omitted.) However, as explained above, the Hoffman Estates standard is a
qualified rule which “assum[es] the enactment implicates no constitutionally protected
conduct,” and recognizes the need for heightened scrutiny of criminal statutes. (Hoffman
Estates, supra, 455 U.S. at pp. 494-495, 498-499.)
       If California’s strictest standard of review mirrors the Hoffman Estates standard, it
is flexible and yielding to vagueness concerns under the due process clause of the United
States and California Constitutions when three elements are present. First, the statute at
issue must reach or implicate a substantial amount of constitutionally protected conduct.
(Hoffman Estates, supra, 455 U.S. at pp. 494-495; Kolender, supra, 461 U.S. at p. 358
and fn. 8; Morales, supra, 527 U.S. at p. 53.) Second, the statute must impose criminal
rather than civil penalties. (Hoffman Estates at pp. 498-499; Kolender at p. 358 and fn. 8;
Morales at p. 55.) Third, the statute must lack a scienter requirement. (Hoffman Estates
at p. 499; Morales at p. 55.)
       The “handgun ammunition” statutes under review in this case impose criminal
sanctions. (§ 30312, subd. (c); § 30365 [“A violation of Section 30352, 30355, 30360, or

                                             28.
30362 is a misdemeanor.”].) The penalties for violating these laws go well beyond the
“stigmatizing effect” described in Hoffman Estates. There, “head shop” owners were at
risk of being labeled “sellers of drug paraphernalia” and being assessed monetary fines
“not less than $10 and not more than $500.” (Hoffman Estates, supra, 455 U.S. at pp.
492, 499, fn. 16.) Here, both ordinary citizens and ammunition vendors face the risk of
being branded a criminal, and the attendant consequences of a criminal conviction.
Furthermore, the statutes do not contain a scienter requirement. (See §§ 30312, 30352,
30355, 30360, and 30362.)
       With two of the three elements satisfied, the remaining question is whether these
laws involve a substantial amount of constitutionally protected conduct. The void-for-
vagueness doctrine is not dependent upon the existence of an actual violation of
constitutional rights apart from the due process protections of the Fifth and Fourteenth
Amendments. Under Hoffman Estates, Kolender, and Morales, the inquiry is whether an
allegedly vague statute “implicates” or “reaches” a substantial amount of constitutionally
protected activity, or “threatens to inhibit the exercise of constitutionally protected
rights.” (Hoffman Estates, supra, 455 U.S. at pp. 494-495, 499; Kolender, supra, 461
U.S. at p. 358 and fn. 8; Morales, supra, 527 U.S. at p. 55.)
       Two decisions by the United States Supreme Court support the conclusion that the
statutes in this case implicate (i.e., involve as a consequence, corollary or natural
inference) individual rights under the Second Amendment. (See Merriam-Webster’s
Collegiate Dict. (11th ed. 2011) p. 624.) In District of Columbia v. Heller (2008) 554
U.S. 570, the United States Supreme Court held that the Second Amendment guarantees
an individual right to possess and use firearms for traditionally lawful purposes, including
self-defense within the home. (Id. at pp. 626-635.) The Supreme Court also recognized
that handguns are “the most preferred firearm in the nation to keep and use for protection
of one’s home and family.” (Id. at pp. 628-629, citation & internal quotation marks
omitted.)

                                             29.
       In McDonald v. Chicago (2010) 561 U.S. ___, [130 S.Ct. 3020] (McDonald), it
was held that Second Amendment rights are fully applicable to the States. (McDonald,
130 S.Ct. at p. 3026.) At least one federal court has reasoned that the right to possess and
use a firearm in one’s home for self-defense necessarily includes the right to acquire
ammunition for the weapon. (See Bateman v. Perdue (E.D.N.C. 2012) 881 F.Supp.2d
709, 714.) This is quite logical, since the utility of a gun for self-defense purposes is
greatly reduced without ammunition.
       Apart from Second Amendment concerns vis-à-vis the buyers of ammunition, one
must consider the rights of the “handgun ammunition vendors” who face criminal
liability under the statutory scheme. The liberty interest at stake for this group is the right
to pursue lawful and remunerative business endeavors. “The right to engage in a
legitimate employment or business receives recognition as a portion of the individual
freedoms secured by the due process provision of the federal and state Constitutions.”
(Doyle v. Board of Barber Examiners (1963) 219 Cal.App.2d 504, 509, citing Schware v.
Board of Bar Examiners (1957) 353 U.S. 232, 238-239; Truax v. Raich (1915) 239 U.S.
33, 41; Bautista v. Jones (1944) 25 Cal.2d 746, 749.) The implication of this right is
particularly notable with respect to those vendors whose business model involves mail-
order or Internet sales of firearm ammunition.
       As discussed above, section 30352 requires a face-to-face transaction for the sale
of “handgun ammunition.” (§ 30352, subd. (a).) As part of the transaction, the vendor
must obtain an extensive amount of information and identifying characteristics from the
buyer. Among those identifying characteristics are the buyer’s signature and right
thumbprint. (§ 30352, subd. (a)(4) & (6).)
       A traditional brick-and-mortar business can err on the side of caution by
complying with the provisions of section 30352 and related statutes in every transaction
involving the sale of firearm ammunition. This type of safeguard is unavailable to mail-
order businesses and online retailers who cannot lawfully sell “handgun ammunition”

                                             30.
without face-to-face interaction. In the absence of a sufficiently clear definition of that
term, these vendors must repeatedly choose between foregoing what may or may not be a
lawful sales transaction, or making a sale at the risk of criminal liability and punishment.
       One of the dangers of allowing vague laws to remain in effect is that “[u]ncertain
meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the
boundaries of the forbidden areas were clearly marked.” (Grayned, supra, 408 U.S. at
pp. 108-109, fn. and quotation marks omitted.) Respondents connect this principle to the
evidence in the record and persuasively argue that the impact on mail-order and Internet
vendors would translate to a reduction in the availability of ammunition, which in turn
threatens to drive up prices and make it more difficult for individuals in rural or remote
areas to purchase cartridges for their firearms.
       When one considers the interplay between the rights of ammunition buyers and
vendors, it is difficult to argue that the challenged statues do not reach a substantial
amount of constitutionally protected conduct. (See Hoffman Estates, supra, 455 U.S. at
pp. 494-495.) The vendors’ Fourteenth Amendment right to engage in legitimate
business activity cannot be characterized as a purely economic interest because the
statutes at issue are criminal laws with criminal penalties. Although individual rights
under both the Second and Fourteenth Amendments are subject to reasonable restrictions
and regulation, the fact remains that these statutes implicate a significant amount of
constitutionally protected behavior. As such, the third element necessary for the void-for
vagueness exception under the Hoffman Estates standard is satisfied.
       In the alternative, if we accept appellants’ argument that California’s strictest
standard is the same as the Salerno rule, and also accept appellants’ interpretation of that
standard, we must still decide whether it is appropriate in this particular case. Our
Supreme Court has acknowledged that the question of when and under what
circumstances one standard should be chosen over the other is unresolved. Therefore, we
must be mindful of the circumstances that have warranted a more lenient standard of

                                             31.
review in similar cases and of important policy considerations that compete with those
holding facial attacks in disfavor.
       The facial challenge in this case does not rest on a “factually barebones record,”
nor does it require us to “anticipate a question of constitutional law in advance of the
necessity of deciding it.” (See Washington State Grange v. Washington State Republican
Party, supra, 552 U.S. at pp. 450-451, internal quotation marks omitted [discussing why
facial challenges are disfavored].) As we explain below, respondents have identified an
inherent due process violation within the text of a criminal statute. “‘No one may be
required at peril of life, liberty or property to speculate as to the meaning of penal
statutes.’” (Morales, supra, 527 U.S. at p. 58.) If the inflexible Salerno standard is used,
the due process rights of countless citizens will be violated when they are forced to guess
at the meaning of the term “handgun ammunition.” There would be little justification for
this result outside of our ability to conceive of a scenario in which application of the law
to one particular cartridge would not be vague.
       Respondents have also highlighted the risk of arbitrary and discriminatory
application of the statutes by law enforcement. The level of discretion conferred upon
individual officers to decide what does or does not constitute “handgun ammunition” on a
case-by-case basis conflicts with basic due process principles. Delaying resolution of this
problem until it returns to this court or reaches other districts through a series of “as
applied” challenges does not promote efficiency or judicial economy. The delay is
unnecessary, especially when legislative enactments “may be declared invalid in their
entirety if piecemeal adjudication of the legality of the statute would entail the vague or
uncertain future application of the statute, thereby inhibiting the exercise of constitutional
rights.” (Siller, supra, 187 Cal.App.3d at p. 49.)
       The policy considerations underlying the void-for-vagueness doctrine weigh in
favor of applying heighted scrutiny to the challenged statutes in accordance with the
principles articulated in Hoffman Estates, Kolender, Morales, and analogous California

                                              32.
case law. To the extent such heightened scrutiny cannot be reconciled with the standard
requiring a “total and fatal conflict with applicable constitutional prohibitions,” we find
California’s more lenient standard of review for facial challenges is appropriate here.
This standard permits facial invalidation of a statute if the law conflicts with
constitutional protections in the generality or great majority of cases.
The Challenged Statutes Are Unconstitutionally Vague
       “All presumptions and intendments favor the validity of a statute and mere doubt
does not afford sufficient reason for a judicial declaration of invalidity.” (Personal
Watercraft Coalition v. Board of Supervisors (2002) 100 Cal.App.4th 129, 137 (Personal
Watercraft Coalition), quoting Lockheed Aircraft Corp. v. Superior Court (1946) 28
Cal.2d 481, 484.) The presumption of validity prevails if there is a reasonable degree of
certainty in the text of the challenged provisions. (Heitzman, supra, 9 Cal.4th at p. 199.)
A criminal statute is reasonably certain if its language is “definite enough to provide (1) a
standard of conduct for those whose activities are proscribed and (2) a standard for police
enforcement and for ascertainment of guilt.” (Williams v. Garcetti (1993) 5 Cal.4th 561,
567, citations and internal quotation marks omitted.) This is the two-pronged test of the
void-for-vagueness doctrine. (See Caswell, supra, 46 Cal.3d at pp. 389-390.)
       While the second prong generally focuses on the existence of minimal guidelines
to govern police officers, a corollary rule is that statutes “must provide a standard or
guide against which conduct can be uniformly judged by courts….” (Morrison v. State
Board of Education (1969) 1 Cal.3d 214, 231.) Ambiguous terms can be made
reasonably certain by reference to “definable sources” such as other code provisions.
(Burg v. Municipal Court (1983) 35 Cal.3d 257, 272; Personal Watercraft Coalition,
supra, 100 Cal.App.4th at p. 139.) A reviewing court also examines the relevant
legislative history and any California decisions construing the challenged statutory
language. (Heitzman, supra, 9 Cal.4th at p. 200.)



                                             33.
       Here we focus on the language that defines the term “handgun ammunition.”
(§ 16650, subd. (a) [“‘handgun ammunition’ means ammunition principally for use in
pistols, revolvers, and other firearms capable of being concealed upon the person,
notwithstanding that the ammunition may also be used in some rifles.”]) The parties
agree the word “principally” should be understood to mean “primarily” or more than 50
percent of the time. Respondents, however, raise a host of questions regarding the
variables that shape the concept of ammunition “principally for use” in handguns.
       Is the standard determined by the behavior of all users of firearms or only certain
groups such as civilian gun owners in a geographic region, e.g., nationally, in California,
or by county, city, or otherwise? Is ammunition usage by military and law enforcement
personnel included in the equation? Are changes in the availability or popularity of
certain firearms and cartridges taken into consideration? Is the definition based on sales
statistics, crime statistics, or other data gathered over a certain period of time? In the
absence of baseline standards, the classification of interchangeable calibers and cartridges
as “handgun ammunition” may be a fluid concept or a moving target, so to speak.
       The substantive text of section 16650 comes from former section 12323,
subdivision (a), which dates back to the 1982 enactment of laws criminalizing the
possession and sale of armor piercing ammunition. (Stats. 1982, ch. 950, § 3; Stats.
1995, ch. 263, § 3; See Stats. 2009, ch. 628, § 2.) Prior to the passage of Assembly Bill
No. 962 (2009-2010 Reg. Sess.), the definition of “handgun ammunition” was relevant
only to the restrictions against ammunition designed to penetrate metal or armor as set
forth in former sections 12320 and 12321.7 Like the trial court, we have searched for

       7  Former sections 12320 and 12321 are now found at sections 30315 and 30320,
respectively. Former section 12323, subdivision (b), which defined “Handgun
ammunition designed primarily to penetrate metal or armor,” is now set forth in section
16660. These statutes were not challenged by respondents and we express no opinion as
to their constitutional validity.



                                             34.
case law interpreting or construing the challenged definition, including cases involving
former section 12323, but found none. The legislative history offers no further insight
into the issue before us.
       Appellants claim it is “no secret that certain ammunition cartridges are more often
used in handguns than in rifles.” Whether or not this is true, determining which
cartridges are used seems rather arcane. In his attempt to compile a list of “handgun
ammunition,” appellants’ expert, Blake Graham, reviewed treatises, Internet sources, and
five years’ worth of sales records from non-public databases at the Department of Justice
to determine the most commonly purchased and transferred calibers of handguns in
California. He then applied his “experience and expertise” to this data, which led him to
determine that 16 cartridges satisfied the definition used in the challenged statutes.
Setting aside respondents’ criticisms of his methodology,8 we note Mr. Graham’s
purported ability to understand the meaning of the law depended upon highly specialized
knowledge and training, extensive research, and his own subjective interpretations.
       In his sworn declaration, Mr. Graham explains that he was careful to prevent “dual
use issues” from clouding his analysis, meaning he eschewed calibers and cartridges that
“might be used just as often in handguns as rifles.” For example, he conceded it would
not be possible to determine whether .22-caliber ammunition is principally used in
handguns or in rifles, at least without further research, and that “[t]he same is true of
certain other calibers.”
       We see the “dual use issues” as the heart of the problem. Given there are over a
thousand different cartridges, and accepting the undisputed premise that almost all of
them can be used interchangeably with handguns and rifles, Mr. Graham’s statements
underscore the uncertainty of the statutory language. Even if we accept that there are a

       8
       Among other things, Respondents take issue with the fact that Mr. Graham did
not compare handgun sales with rifle sales.



                                             35.
handful of circumstances where the term “handgun ammunition” is not vague to a trained
expert, there are countless scenarios in which average citizens and even those with
superior knowledge “must necessarily guess at its meaning and differ as to its
application.” (Connally, supra, 269 U.S. at p. 391.) Contrary to appellant’s arguments,
inherent vagueness in a criminal statute cannot be cured by listing a few examples that
can be interpreted as violations of a standardless law. This brings us back to the principle
recited in Morales: “The Constitution does not permit a legislature to ‘set a net large
enough to catch all possible offenders, and leave it to the courts to step inside and say
who could be rightfully [prosecuted].’” (Morales, supra, 527 U.S. at p. 60, quoting
United States v. Reese (1876) 92 U.S. 214, 221.)
       Appellants argue that because the statutory scheme applies to members of a
particular vocation, namely ammunition vendors, we should assume those individuals
share a common understanding of the term “handgun ammunition.” This is especially
true, appellants contend, because some vendors advertise their inventory as “handgun
ammunition” and “rifle ammunition.” We are not persuaded by this reasoning.
       “Where the requisite certainty is not apparent on the face of the statute the
deficiency may be satisfied by ‘common understanding and practices’ [Citations] ‘or
from any demonstrably established technical or common law meaning of the language in
question.’” (People v. Barksdale (1972) 8 Cal.3d 320, 327.) Even if the marketing
techniques cited by appellants reflect a widespread practice in the industry, which is not
confirmed by their evidence, this does not establish a technical meaning or universally
accepted standard among vendors. Furthermore, designations by individual retailers may
very well conflict with the interpretations of law enforcement officers. Appellants’
argument also avoids the fact that section 30312 (former § 12318), which regulates the
delivery or transfer of ownership of “handgun ammunition,” applies to all citizens and
not just “handgun ammunition vendors.”



                                             36.
A criminal statute fails to meet the requirements of due process “if it is so vague and
standardless that it leaves the public uncertain as to the conduct it prohibits.” (Morales,
supra, 527 U.S. at p. 56, quoting Giaccio v. Pennsylvania (1966) 382 U.S. 399, 402-403;
accord, Kolender, supra, 461 U.S. at p. 357.) Several firearms users and vendors with
different backgrounds were deposed in this case, including two highly credentialed
experts, yet none shared the same understanding of what is meant by the notion of
ammunition “principally for use” in handguns. This is not surprising considering the
statutes provide no guidance or objective criteria for that concept. Mathematical
precision is not required, but an average person of ordinary intelligence must be able to
identify the applicable “standard for inclusion and exclusion.” (Smith v. Goguen (1974)
415 U.S. 566, 578.) In this case the standard is elusive at best.
       We find no basis from the text of the challenged statutes, their legislative history,
the record on appeal, or elsewhere upon which to conclude there is a common
understanding or objective meaning of the term “handgun ammunition.” The level of
certainty necessary to provide fair notice of the proscribed conduct and adequate
standards for compliance with the law is missing. Therefore, the statutory scheme is
unconstitutional.
       Because the challenged provisions fail to provide meaningful guidelines or
discernable standards, there is a significant risk of arbitrary and discriminatory
application by law enforcement officials. The lack of statutory guidance effectively
confers discretion upon individual police officers to interpret the law themselves, thus
allowing it to be enforced selectively or haphazardly. As such, the statutes do not satisfy
the due process requirements under the second prong of the void-for-vagueness doctrine.
       The foregoing analysis leads us to conclude that vagueness permeates the text of
section 16650 (former §§ 12060, subd. (b); 12323, subd. (a)), section 30312 (former §
12318), and sections 30345 through 30365 (former § 12061) to the point where
constitutional guarantees of due process are violated. We believe the inherent vagueness

                                             37.
of the statutory scheme presents a total and fatal conflict with the due process clauses of
the United States and California Constitutions, even if one could conceive of a scenario
in which application of the law to a particular set of facts would not involve ambiguity.
At a minimum, the challenged statutes present a general conflict with the protections of
due process and are unconstitutionally vague in the great majority of cases for failure to
provide adequate notice of the conduct proscribed and a reasonably certain standard for
enforcement of the law. Therefore, the statutes are void for vagueness.
                                             II.
  THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN THE PARTIAL
              DENIAL OF APPELLANTS’ MOTION TO TAX COSTS
Background
       This part of the appeal involves a dispute over a $40 filing fee. In September
2010, respondents filed a motion for preliminary injunction seeking to enjoin
enforcement of the challenged statutes pending a final adjudication on the merits.
Respondents withdrew the motion in November 2010.
       In March 2011, after succeeding on their motion for summary adjudication,
respondents filed a memorandum of costs pursuant to Code of Civil Procedure section
1032. Respondents claimed costs totaling $11,355.63, including the filing fee for their
withdrawn motion for preliminary injunction. Appellants subsequently filed a motion to
tax costs. In pertinent part, appellants’ motion argued that “[t]he State should not be
made to bear the cost of filing a preliminary injunction motion that was withdrawn before
it was decided – by definition such a cost is not reasonably necessary to the litigation
because [as a result of the withdrawal] it is as if the motion ‘had not been made.’ The
State therefore requests that the Court tax the $40.00 motion filing fee.”
       Appellants’ motion to tax costs was partially granted in the amount of $2,572.18,
but denied as to the filing fee for the preliminary injunction motion. The following
grounds were stated in the trial court’s decision: “Filing and motion fees are allowable

                                            38.
costs. (Code of Civil Procedure § 1033.5(a)(1).) Defendants have not met their initial
burden of proof of demonstrating that the motion fee for the Plaintiffs’ motion for
preliminary injunction was unnecessary or unreasonable. (Ladas v. Cal. State Auto.
Ass’n (1993) 19 Cal.App.4th 761, 774.)”
       Appellants now appeal the trial court’s decision to not tax the $40 filing fee. In
doing so, they ask us to decide whether there should be a per se rule against the recovery
of costs for a withdrawn motion. The issue is characterized in appellants’ briefs as an
important matter of first impression.
Discussion
       Section 1032 of the Code of Civil Procedure provides for the recovery of costs by
a prevailing party. “Prevailing party” is defined as including: “[1] the party with a net
monetary recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant
where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against
those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc.,
§ 1032, subd. (a)(4).) If a party recovers anything other than monetary relief, or in
situations not specified above, the trial court designates a prevailing party and uses its
discretion to determine the amount and allocation of costs, if any. (Ibid.; Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1333.)
       An order granting or denying a motion to tax costs is reviewed under the abuse of
discretion standard. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 52.) “To the
extent the statute grants the court discretion in allowing or denying costs or in
determining amounts, we reverse only if there has been a ‘“clear abuse of discretion” and
a “miscarriage of justice.”’” (Ibid.)
       Appellants do not dispute that respondents were the prevailing party in the matter
below. If the items in a prevailing party’s cost memorandum appear to be proper
charges, the verified memorandum is prima facie evidence the expenses were necessarily
incurred. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) In filing a motion to

                                             39.
tax such costs, the moving party has the burden to present evidence showing the expenses
were not reasonable or necessary. (Ibid; Code Civ. Proc. § 1033.5, subd. (c)(2)
[“Allowable costs shall be reasonably necessary to the conduct of the litigation rather
than merely convenient or beneficial to its preparation.”].)
       The trial court was correct that filing fees are allowable as costs under Code of
Civil Procedure section 1032. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Therefore,
respondents’ memorandum of costs was prima facie evidence that their filing fees were
necessarily incurred. Appellants had the burden to prove otherwise. Instead, they argued
fees for a withdrawn motion should not be allowed as a matter of law.
       Appellants’ position is based on language from an opinion by the Supreme Court
of Wyoming, Hammons v. Table Mountain Ranches Owners Ass'n, Inc. (Wyo. 2003) 72
P.3d 1153 (Hammons). The opinion states, “[a] motion withdrawn leaves the record as it
stood prior to the filing of the motion, i.e., as though it had not been made.” (Id. at p.
1157.) We do not take issue with this proposition, but it is completely irrelevant to this
appeal.
       The Hammons case did not involve the recovery of litigation costs. Moreover, the
word “record,” as used in the context of the quoted language from Hammons, merely
refers to the documents on file with the trial court and issues raised within those
documents. (See Hammons, supra, 72 P.3d at pp. 1156-1157.) Returning the “record” to
the state it was in before the particular motion was made does not magically eliminate
any tangible or intangible benefits a litigant may have derived from preparing and filing
the motion.
       A withdrawn motion is analogous to an unsuccessful motion, especially in this
case since the trial court apparently gave respondents the choice to either withdraw their
motion for preliminary injunction or have it denied. There is precedent for the recovery
of fees for an unsuccessful motion. Conferring discretion upon trial courts to allow such
recovery rests upon sound policy considerations. “Litigation often involves a succession

                                             40.
of attacks upon an opponent’s case; indeed, the final ground of resolution may only
become clear after a series of unsuccessful attacks. Compensation is ordinarily warranted
even for unsuccessful forays.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d
1287, 1303 [permitting the recovery of attorney fees associated with a withdrawn motion
pursuant to Code Civ. Proc. § 1021.5].) “A litigant should not be penalized for failure to
find the winning line at the outset, unless the unsuccessful forays address discrete
unrelated claims, are pursued in bad faith, or are pursued incompetently, i.e, are such that
a reasonably competent lawyer would not have pursued them.” (Ibid.)
       We find these policy considerations militate against a per se rule that prohibits the
recovery of fees for withdrawn motions in all cases. The trial court’s ability to allow or
disallow such fees at its discretion is an adequate safeguard against the unfair shifting of
litigation costs from one party to another. Notwithstanding the lack of merit in
appellants’ legal arguments, the trial court could have easily concluded that the work
respondents put into their preliminary injunction motion was significant to the
development and preparation of their motion for summary adjudication. We find no
abuse of discretion in the trial court’s ruling on the motion to tax costs.
                                      DISPOSITION
       The judgment is affirmed. Respondents are entitled to their costs on appeal.



                                                                   _____________________
                                                                                Gomes, J.
I CONCUR:


 _____________________
Kane, J.




                                             41.
CORNELL, J., Dissenting
       We are reviewing a facial attack on admittedly vague statutes that have yet to be
enforced. Does that vagueness make the statutes unconstitutional? My colleagues think
that it does. I do not.
       The majority opinion, in my view, does not accord due deference to the
Legislature in its attempt to address a serious public safety concern. Nor does it heed the
jurisprudential canon that before declaring a statute void for vagueness, the trial court
must determine whether its validity can be preserved by giving “‘specific content’ to
terms that might otherwise be unconstitutionally vague. [Citations.]” (People v.
Heitzman (1994) 9 Cal.4th 189, 209.)
       Rather than invalidate these statutes that have yet to be enforced, I would apply
the stricter standard to assess respondents’ facial challenge. I also would construe the
statutes to include a scienter element and limit their application to those cartridges that
generally are recognized as “principally for use” in handguns. Under this commonsense
construction, I would conclude the statutes convey a sufficiently definite warning of the
regulated conduct and uphold their constitutionality.
Additional Facts
       In signing Assembly Bill No. 962 (2009-2010 Reg. Sess.) (Assembly Bill No.
962) into law, former Governor Schwarzenegger wrote:

              “This measure would require vendors of handgun ammunition to keep a log
       of information on handgun ammunition sales, store ammunition in a safe and
       secure manner, and require the face-to-face transfer of ammunition sales.

               “Although I have previously vetoed legislation similar to this measure,
       local governments have demonstrated that requiring ammunition vendors to keep
       records on ammunition sales improves public safety. These records have allowed
       law enforcement to arrest and prosecute persons who have no business possessing
       firearms and ammunition: gang members, violent parolees, second and third
       strikers, and even people previously serving time in state prison for murder.
       Utilized properly, this type of information is invaluable for keeping communities
       safe and preventing dangerous felons from committing crimes with firearms.

               “Moreover, this type of recordkeeping is no more intrusive for law abiding
       citizens than similar laws governing pawnshops or the sale of cold medicine.
       Unfortunately, even the most successful local program is flawed; without a
       statewide law, felons can easily skirt the recordkeeping requirements of one city
       by visiting another. Assembly Bill [No.] 962 will fix this problem by mandating
       that all ammunition vendors in the state keep records on ammunition sales.

              “As Governor, I have sought the appropriate balance between public safety
       and the right to keep and bear arms.… Assembly Bill [No.] 962 reasonably
       regulates access to ammunition and improves public safety without placing undue
       burdens on consumers.” (Historical and Statutory Notes, 51D pt. 1 West’s Ann.
       Pen. Code (2012 ed.) foll. § 12060, pp. 262-263.)

       The former Governor’s signing message acknowledged that several local
governments had enacted ordinances requiring ammunition vendors to keep records of
ammunition sales, which have lead to improved public safety. These local ordinances
require a sales log for all firearm ammunition sales. (See, e.g., Sacramento City Code,
section 5.66.020 [ammunition sales log required]; Los Angeles Municipal Code section
55.11 [requirement for ammunition sales]; San Francisco Police Code section 615
[records of ammunition sales].) The California Legislature did not disclose why, in
enacting the challenged provisions, it chose to focus on handgun ammunition sales.
However, recent statements from the United States Supreme Court may provide a reason.
       In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), handguns were
singled out as a particular public safety problem. In the final paragraph of the majority
opinion, the court stated, “We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the many amici who believe that
prohibition of handgun ownership is a solution. The Constitution leaves the District of
Columbia a variety of tools for combating that problem, including some measures
regulating handguns [such as laws imposing conditions and qualifications on the
commercial sale of arms].” (Id. at pp. 627, 636.)


                                             2.
       Additionally, a dissenting opinion stated:
              “Handguns are involved in a majority of firearm deaths and injuries in the
       United States. [Citation.] From 1993 to 1997, 81% of firearm-homicide victims
       were killed by handgun. [Citations.] In the same period, for the 41% of firearm
       injuries for which the weapon type is known, 82% of them were from handguns.
       [Citation.] And among children under the age of 20, handguns account for
       approximately 70% of all unintentional firearm-related injuries and deaths.
       [Citation.] In particular, 70% of all firearm-related teenage suicides in 1996
       involved a handgun. [Citations.]

              “Handguns also appear to be a very popular weapon among criminals. In a
       1997 survey of inmates who were armed during the crime for which they were
       incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they
       were armed with a handgun. [Citation]; see also Weapon Use and Violent Crime
       2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal
       violent crimes involving firearms from 1993 to 2001). And handguns are not only
       popular tools for crime, but popular objects of it as well: the Federal Bureau of
       Investigation received on average over 274,000 reports of stolen guns for each
       year between 1985 and 1994, and almost 60% of stolen guns are handguns.
       [Citation.] Department of Justice studies have concluded that stolen handguns in
       particular are an important source of weapons for both adult and juvenile
       offenders. [Citation.]” (Heller, supra, 554 U.S. at pp. 697-698 (dis. opn. of
       Breyer, J.).)

Question Presented
       The constitutional question presented here is whether the statutory language
“principally for use” in handguns is sufficiently certain under the void for vagueness
doctrine to satisfy the due process clause of the Fourteenth Amendment. I conclude the
answer to that question is affected substantially by the procedural posture of respondents’
constitutional challenge. Respondents have brought a preenforcement facial vagueness
challenge to the handgun ammunition provisions. A preenforcement facial vagueness
challenge is a claim that the law is “invalid in toto—and therefore incapable of any valid
application. [Citation.]” (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S.
489, 494, fn. 5 (Hoffman Estates); see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1109 (Tobe).) Because this is a preenforcement challenge, albeit to a criminal statute, I

                                            3.
would require respondents to establish that the challenged provisions are
unconstitutionally vague in all applications in order to prevail.

Void for Vagueness Doctrine
       A criminal statute must define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. (Skilling v. United States (2010)
___ U.S. ___ [130 S.Ct. 2896, 2927-2928]; People v. Morgan (2007) 42 Cal.4th 593, 605
(Morgan).) The degree of vagueness the Constitution tolerates, as well as the relative
importance of fair notice and fair enforcement, depends on two factors. The first and
more important factor is whether the statute threatens to inhibit the exercise of
constitutionally protected rights, particularly First Amendment rights. (Hoffman Estates,
supra, 455 U.S. at p. 499.) The second is the nature of the statute. An economic
regulation or a statute imposing civil penalties is subject to a less strict vagueness test
than a statute imposing criminal penalties. And, a scienter requirement can mitigate a
criminal law’s vagueness, especially as to the adequacy of notice to the individual
regarding the conduct proscribed. (Id. at pp. 498-499.)
Standard of Review for Facial Challenges
       I disagree with the majority regarding the standard this court should apply to
review respondents’ facial vagueness challenge. Both the United States Supreme Court
(United States v. Salerno (1987) 481 U.S. 739) and the California courts have articulated
two tests for resolving facial challenges. Under the Salerno standard’s strict “void in all
applications” test, the statute will be upheld unless the challenging party establishes its
provisions are impermissibly vague in all applications and pose a present total and fatal
conflict with applicable constitutional principles. (Id. at p. 745; Morgan, supra, 42
Cal.4th at pp. 605-606 [“‘a party … must demonstrate that “the law is impermissibly
vague in all of its applications”’”].) Under the more lenient test, a party must establish

                                              4.
that the statute is impermissibly vague “‘in the generality or great majority of cases.’
[Citations.]” (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126-1127.)
       Which standard applies under what circumstances is unresolved in both the federal
and California courts. Many courts have avoided determining which standard is applied
to the facial challenge before them by concluding that the challenge fails under both
standards. (See, e.g., Washington v. Glucksberg (1997) 521 U.S. 702, 739-740 (conc.
opn. of Stevens, J.); Today’s Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197, 218.)! We do not have that option. Most of the respondents who
oppose enforcement of the challenged provisions concede the statutes have some valid
applications. Thus, if the court applies the void in all applications test, their challenge
fails. If the court applies the void in the generality of cases test, they may prevail.
       The majority applies the more lenient “vague in the generality of cases” test
because it concludes the statutes implicate a substantial amount of constitutionally
protected conduct, impose criminal penalties, and lack a scienter element. While I agree
the statutes impose misdemeanor criminal liability, I nevertheless would apply the stricter
“void in all applications” test for three reasons.
       First, respondents have brought a preenforcement facial vagueness challenge to
the statutes rather than a facial challenge after enforcement. Second, although the
provisions may minimally burden handgun ammunition purchases, they do not reach a
substantial amount of constitutionally protected conduct. And third, the California
Supreme Court has applied the stricter test in resolving facial vagueness challenges to
criminal statutes.
       1. Preenforcement Facial Challenge
       The majority acknowledges that facial challenges to legislation are disfavored but
ignore the preenforcement aspect of respondents’ facial challenge. While Hoffman
Estates involved a preenforcement—but threatened—challenge, the remaining Supreme

                                              5.
Court cases the majority cites involved facial challenges to statutes that had been
enforced, sometimes numerous times. In Kolender v. Lawson (1983) 461 U.S. 352, 354-
355, the defendant had been arrested 15 times under the challenged statute; in City of Chi.
v. Morales (1999) 527 U.S. 41, 49, the gang loitering ordinance had resulted in over
42,000 arrests. (Accord, Lanzetta v. New Jersey (1939) 306 U.S. 451; Connally v.
General Const. Co. (1926) 269 U.S. 385 [threatened enforcement].) The record before
the court in those cases provided ample evidence of how the challenged statutes were
enforced and substantially supported the challenger’s assertions of arbitrary enforcement,
the lynchpin of the court’s void for vagueness findings in Kolender and Morales.
       Here, in contrast, the statutory challenge was brought hastily so the trial court
could rule before the operative date of the new legislation. Further, the challenge is
composed largely of declarations and deposition testimony from parties opposed to any
sort of gun control, who speculate, as they must, regarding how the provisions will be
enforced. Because the statutes have yet to be enforced, I would require respondents to
establish that the statutes have no constitutional application to prevail on their
preenforcement challenge.
       2. Threat to Constitutionally Protected Rights and Nature of the Provisions
       I disagree with the majority’s conclusion that the challenged statutory provisions
implicate a substantial amount of constitutionally protected conduct: the individual rights
of ammunition buyers under the Second Amendment and the liberty interest of handgun
ammunition vendors to pursue lawful business endeavors.
       Heller, supra, 554 U.S. 570 confirmed that the Second Amendment protects an
individual’s right to possess functional firearms for self-defense and recognized that
handguns are the most popular weapon chosen by Americans for self-defense in the
home. (Heller, at pp. 629, 635.) Further, the right to bear arms necessarily includes the
right to acquire ammunition essential to a functional firearm. (See, e.g., Bateman v.

                                              6.
Perdue (E.D.N.C. 2012) 881 F.Supp.2d 709, 714.) In my view, however, the challenged
provisions fall within the reasonable conditions on the commercial sale of arms
recognized in Heller and McDonald v. City of Chicago Ill. (2010) ___U.S.___ [130 S.Ct.
3020, 3026 [incorporation of the Second Amendment into the Fourteenth Amendment did
not endanger every law regulating firearms].)
       The provisions requiring the ammunition seller or transferor to record the buyer’s
identification information at a sale of ammunition principally for use in a handgun does
not unduly burden the buyer’s Second Amendment right to possess an operable handgun
for self-defense in the home. The resulting minor inconvenience to the buyer is quite
distinct from any threat to inhibit his or her right to possess an operable handgun for self-
defense. The same is true of the requirement of face-to-face transfers of handgun
ammunition. A decrease in convenience does not constitute a meaningful deprivation of
the right.
       I also do not agree that the challenged provisions threaten to inhibit the handgun
ammunition vendors’ liberty rights to pursue a lawful business. The majority singles out
vendors whose business model involves mail order or Internet sales of ammunition, who
under Penal Code section 303121 are unable to transfer handgun ammunition without a
face-to-face transaction. The majority concludes such vendors will be forced to choose
between foregoing what may or may not be a lawful transaction or making a transfer and
risking criminal liability and punishment. This is a questionable conclusion. Given the
ongoing advances in Internet interactions and transactions, no one can predict accurately
how the statutes will affect those vendors or how businesses may adapt to meet the
statutory requirements. Further, I question whether the challenged provisions reach a
substantial amount of constitutionally protected behavior. Respondents cite no law

       1All   further statutory references are to the Penal Code unless otherwise stated.


                                               7.
supporting their implied assertion that an out-of-state vendor has a constitutionally
protected liberty interest in selling its products by mail order or Internet in California free
from the regulations that California has chosen to adopt to address serious public safety
concerns within its borders.
       Because the challenged statutes impose a minimal burden on the individual’s
Second Amendment rights and do not have a sufficiently substantial impact on the
ammunition vendors’ pursuit of lawful business, they do not justify application of the
more lenient test to this preenforcement facial vagueness challenge.
       Another factor in determining which vagueness test applies is the nature of the
challenged provisions. The provisions at issue regulate the sale, display, and transfer of
ammunition principally for use in handguns. In some ways, the challenged provisions are
akin to the economic regulations at issue in Hoffman Estates because they regulate the
conduct of the ammunition supplier rather than the user. Courts have applied a less strict
vagueness test to economic regulations, reasoning that businesses that face economic
regulations can be expected to consult relevant legislation in advance of action.
(Hoffman Estates, supra, 455 U.S. at p. 498.) That is what occurred here. Some of the
respondents, who are engaged in the business of selling ammunition, consulted with
counsel for assistance in interpreting the provisions before their effective date. Thus, this
factor also supports the use of the void in all applications test.
       On the other hand, the challenged provisions impose misdemeanor criminal
penalties on the suppliers of handgun ammunition who fail to comply with the
recordkeeping requirements and on persons who transfer handgun ammunition except in
a face-to-face transaction. More leeway, however, is permitted in regulatory statutes,
even where criminal penalties are involved. (People v. Prevost (1998) 60 Cal.App.4th
1382, 1394.)



                                               8.
       Rather than using the criminal liability factor to justify application of the more
lenient test to assess facial validity, I would construe the statutes to include a scienter
element and give the provisions a practical construction that narrows their application to
ammunition generally recognized as principally for use in handguns.2 I would then apply
the stricter “void in all applications” test to this narrowed construction.
       3. California Case Authority
       Finally, I would apply the stricter “void in all applications” test utilized by the
California Supreme Court when resolving facial vagueness challenges to criminal
statutes. For example, in rejecting a facial vagueness challenge to the asportation
element of kidnapping, the court stated, “‘a party … must demonstrate that “the law is
impermissibly vague in all of its applications.”’” (Morgan, supra, 42 Cal.4th at pp. 605-
606.) In rejecting a facial vagueness challenge to an antigang injunction, the court stated,
“a claim that a law is unconstitutionally vague can succeed only where the litigant
demonstrates … that the law is vague as to her or ‘impermissibly vague in all of its
applications.’ [Citations.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090,
1116.) In rejecting a facial vagueness challenge to an ordinance banning camping in
designated public areas, the court stated, “‘“petitioners must demonstrate that the act’s
provisions inevitably pose a present total and fatal conflict with applicable constitutional
prohibitions.”’ [Citations.]” (Tobe, supra, 9 Cal.4th at p. 1084.) And in rejecting a
vagueness challenge to the statutory definition of insanity, the court stated, “‘to succeed
on a facial vagueness challenge to a legislative measure that does not threaten
constitutionally protected conduct … a party must … demonstrate that “the law is




       2At oral argument, counsel for the State of California readily acknowledged the
need for a scienter requirement.


                                               9.
impermissibly vague in all of its applications.”’ [Citations.]” (People v. Kelly (1992) 1
Cal.4th 495, 534.)
       I thus would hold the stricter “void in all applications” test applicable to this
preenforcement facial vagueness challenge. Hence, the precise constitutional issue
presented is whether the “principally for use” in handguns language is impermissibly
vague in all of its applications.
Application of the Standard of Review to the Challenged Provisions
       I think the “principally for use” in handguns language sufficiently certain to
survive this preenforcement facial vagueness challenge for four reasons.
       First, I would apply the rule that statutes are to be construed, if their language
permits, so as to render them valid and constitutional rather than invalid and
unconstitutional. (Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th
1152, 1164.) Under this rule, in view of the large number of cartridges that potentially
fall within the challenged language, I would infer a scienter element. (In re Jennings
(2004) 34 Cal.4th 254, 267 [the requirement that the prosecution prove guilty knowledge
is so fundamental to our criminal justice system that penal statutes often are construed to
contain a scienter element if they fail to state one expressly].) Further, I would limit the
phrase “ammunition principally for use in pistols, revolvers and other firearms capable of
being concealed upon the person” to ammunition that generally is recognized as used
more often in handguns than in other types of firearms. (See, e.g., Erlich v. Municipal
Court (1961) 55 Cal.2d 553, 559.)
       Under that practical and commonsense construction, an ammunition purveyor
would be liable criminally for failing to comply with the statutes only when he or she
knows or should know that the ammunition displayed, sold, or transferred is ammunition
principally for use in handguns because the ammunition generally is recognized as
handgun ammunition.

                                             10.
       Second, in my view, the challenged language has an ascertainable meaning among
members of an affected trade or profession. (§ 7, subd. 12.) Therefore, I would conclude
that the Legislature reasonably could charge a handgun ammunition vendor of common
intelligence with superior knowledge as to which cartridges of ammunition generally are
recognized as principally for use in handguns. (People v. Cramblit (1978) 84 Cal.App.3d
437, 445.) And to the extent that section 30312, subdivision (a) [delivery or transfer of
handgun ammunition must occur in a face-to-face transaction] is not limited to vendors,
the addition of the scienter element would assure that lay persons have fair warning that
the transfer of ammunition that is recognized as handgun ammunition must comply with
the challenged provisions. If an individual is truly ignorant of the principal use of the
ammunition transferred, he or she may avoid potential liability by complying with the
challenged provisions.
       Third, I disagree that the phrase “principally for use” in handguns is
unconstitutionally vague because it is not clear what information is required to make that
determination. I agree that “principally for use” means used “for the most part” or
“more than 50 percent of the time.” The Legislature regularly has used terms such as
“principally” and “primarily” to define prohibited conduct. (See, e.g., §§ 189, 243,
subd. (f)(19), 498, subd. (c)(1); Civ. Code, § 1802.4; Ins. Code, § 11580.06, subds. (a),
(d); Lab. Code, § 108.2, subd. (b)(3); Veh. Code, § 435.5; Bus. & Prof. Code, § 10133.1,
subd. (a)(5); Fam. Code, § 852, subd. (c); Suter v. City of Lafayette (1997) 57
Cal.App.4th 1109, 1132-1133 [ordinance that required business proprietor to bar minors
unaccompanied by a parent or guardian from remaining in a store where “‘firearms sales
activity is the primary business performed at the site’” was not unconstitutionally
vague].)
       Hoffman Estates, supra, 455 U.S. at pages 500-501 and Posters ‘N’ Things, Ltd. v.
United States (1994) 511 U.S. 513, 521-522 are instructive. In those cases, the court

                                             11.
reasoned that in determining an item’s principal use, the court looked to the item’s
objective features and likely use.
       Adding these components to the interpretation of the challenged language leads to
the conclusion that ammunition “principally for use” in handguns means cartridges used
more often in handguns than in other firearms by virtue of their objective characteristics
and likely use. Thus, ammunition principally for use in handguns includes cartridges that
by their objective characteristics or likely use give the ammunition handler of ordinary
intelligence, vendor or not, fair notice that the ammunition transferred is handgun
ammunition as targeted in the challenged statutes.
       Further, because Internet ammunition vendors and a respected ammunition
encyclopedia categorize a number of cartridges as handgun ammunition, I would
conclude that the meaning of “ammunition principally for use in handguns” can be
ascertained objectively.
       Like the appellants in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201,
respondents raise a host of questions regarding how to interpret the “principally for use”
in handguns phrase. As the Evangelatos court did, I would decline to entertain these
inquiries in this preenforcement facial challenge except to note that constitutional fair
notice requires only a reasonable degree of certainty so that prosecution does not trap the
innocent without fair warning. Here, fair notice requires a limiting construction so that
handgun ammunition includes only those cartridges that generally are recognized as
principally for use handguns. And, under a reasonable and practical construction of the
statutes, ammunition handlers would not be charged with knowledge of all ammunition
use across time and around the world.
       Moreover, respondents’ questions amount to hypertechnical inquiries. A statute is
not unduly vague because its terms may be dissected to yield some ambiguity or
uncertainty. (People v. Heffner (1977) 70 Cal.App.3d 643, 653.) While respondents may

                                             12.
have legitimate questions about the applicability of the provisions to less familiar
cartridges or cartridges that arguably are used equally in handguns and in rifles, courts
recognize that the law is full of instances where a person’s fate depends on his or her
estimating correctly, that is, as the jury subsequently estimates it. (Id. at p. 654, citing
United States v. Powell (1975) 423 U.S. 87, 93 (Powell).)
       Fourth, I would find the challenged language, as construed, sufficiently certain to
survive this challenge under federal and California precedent.
       Regarding the fair notice prong of the void for vagueness doctrine, case law
illustrates the specificity required in the description of the regulated conduct to avoid
unconstitutional vagueness. In Powell, supra, 423 U.S. 87, the defendant, who had sent a
22-inch sawed-off shotgun through the mails, challenged her conviction for violating a
federal law that proscribed mailing pistols, revolvers, and concealable weapons. She
contended the phrase, “‘other firearms capable of being concealed on the person,’” was
unconstitutionally vague. (Id. at pp. 89-90.) The Supreme Court disagreed. That
Congress might have chosen clearer and more precise language did not mean that the
statute was unconstitutionally vague. (Id. at pp. 93-94.) Had Congress chosen to delimit
the size of the firearms intended to be declared unmailable, it would have written a
different and narrower statute than it wrote. (Id. at p. 94.)
       Similarly, in Morgan, supra, 42 Cal.4th 593, the California Supreme Court
considered whether the asportation element of simple kidnapping, which required
movement of a “substantial distance,” was unconstitutionally vague. (Id. at p. 604.) The
court noted that the law was full of examples in which a person must conform his or her
conduct to such nonmathematical standards as “prudent,” “reasonable,” “necessary and
proper” and “substantial.” (Id. at p. 606.) For example, an individual may be cited for
speeding if he overestimates the “prudent or reasonable” speed to drive his car under the
circumstances (Veh. Code, § 22350); another may be convicted of willful homicide if he

                                              13.
misjudges the “reasonable amount” of force he may use in repelling an assault. But
standards of this kind are not unconstitutionally vague if their meaning can be
“objectively ascertained by reference to common experiences of mankind. [Citation.]”
(Morgan, at p. 606.) The court concluded, in the context of the simple kidnapping
statute, the phrase “substantial distance” meant a significant amount as opposed to a
trivial distance and thus met the constitutional requirement of reasonable certainty.
(Id. at pp. 606-607.)
       In Heffner, supra, 70 Cal.App.3d 643, the court held that the statute that
proscribed the carrying of a loaded weapon in a public place provided adequate notice
that the carrying of a Taser armed for firing fell within its proscription. (Id. at pp. 653,
654-655.) The court reasoned that due process required only that “‘the law give
sufficient warning that men may conduct themselves so as to avoid that which is
forbidden.’ [Citation.]” (Id. at pp. 654-655.) And, the complexities of the social
problems dealt with by the Legislature required the court give a practical construction to
the language employed by the draftsmen, lest their legislative purposes be too easily
nullified by hypertechnical inquiries into the meaning of words. (Id. at p. 649.)
       Finally, in Burg v. Municipal Court (1983) 35 Cal.3d 257, the Supreme Court
rejected a void for vagueness challenge to the statute making it illegal for a person to
drive with a blood-alcohol content of 0.10 percent or more. The court held that “fair
notice” required only that the violation be described with a “reasonable degree of
certainty” so that prosecution did not “trap the innocent” without “fair warning.” (Id. at
pp. 270-271.) The court concluded that a person who drives a vehicle after ingesting
sufficient alcohol to approach or exceed the proscribed level is neither innocent nor
without fair warning. (Id. at p. 271.)
       In my view, the challenged language, as construed and with an inferred scienter
element, provides sufficient certainty so that prosecution does not trap the innocent. The

                                              14.
challenged provisions require ammunition purveyors to comply with the recordkeeping
and face-to-face sale requirements when they transfer ammunition that is used for the
most part in handguns, even though the particular ammunition also may be used in rifles.
       The evidence introduced in the trial court as to the general understanding of the
meaning of the phrase “handgun ammunition” was conflicting. While each respondent
declared that he did not know and could not determine whether any ammunition was
principally for use in handguns, each conceded in deposition testimony that, in his
experience, certain cartridges were used more often in handguns than in rifles. Further,
appellants’ expert identified 16 cartridges as ammunition principally for use in handguns
within the meaning of the challenged statutes and testified that few, if any, long guns
(rifles) fire those cartridges. While the parties’ identification of handgun ammunition did
not agree necessarily, there was evidence that ammunition handlers were able to identify
cartridges that were used more often in handguns and thus fell within the statutory
definition of handgun ammunition. In addition, ammunition vendors’ Web sites
categorize cartridges for sale as handgun ammunition, pistol ammunition, rifle
ammunition, and shotgun ammunition. And Cartridges of the World, a recognized
ammunition reference encyclopedia that was cited by both parties, is divided into
chapters by categories of ammunition and includes a section entitled, “Current Handgun
Cartridges of the World.” The logical inference from this evidence is that certain
ammunition is recognized as handgun ammunition, despite its possible use in rifles.
       Further, the challenged statutes are not fatally uncertain because they require
individuals to consider their subjective experience to determine whether a particular
cartridge is handgun ammunition under the provisions. Criminal statutes that govern
conduct by subjective standards have been held to be sufficiently certain if their meaning
can be objectively determined by common experience. (Morgan, supra, 42 Cal.4th at
p. 606.)

                                            15.
       As I see it, the evidence that handgun vendors label a portion of their stock as
“handgun ammunition” and that the ammunition encyclopedia includes a section entitled
“Current Handgun Cartridges of the World” demonstrates that the meaning of
“ammunition principally for use in handguns” can be determined objectively by reference
to common life experiences. Accordingly, the phrase “principally for use” in handguns is
not unconstitutionally vague. (Morgan, supra, 42 Cal.4th at p. 606.)
       Under these authorities, with the inferred scienter requirement and the practical
and commonsense construction proposed, I would conclude the statutes convey a
sufficiently definite warning of the regulated conduct when measured by common
understanding and practices so that those motivated to comply with the statutes have
sufficient warning to avoid that which is forbidden. (Heffner, supra, 70 Cal.App.3d at
pp. 654-655.)
       Regarding the second void for vagueness claim of arbitrary enforcement, I would
dispose of respondents’ challenge summarily because it is preenforcement. This claim
requires that statutory language be definite enough to discourage arbitrary and
discriminatory enforcement.
       Respondents speculate that enforcement officers will differ among themselves
regarding which cartridges are principally for use in handguns, leading to the possibility
of arbitrary and discriminatory enforcement. Unlike the situation in Kolender, where the
petitioner repeatedly had been stopped and arrested under the challenged provision, here
there is no evidence available to indicate whether the handgun ammunition provisions
will be enforced in an arbitrary or discriminatory manner. Claims that the provisions will
be applied arbitrarily or with the aim of inhibiting unpopular activity are speculative.
(Gonzales v. Carhart (2007) 550 U.S. 124, 150.) I would decline to decide at this time
whether speculative enforcement claims may jeopardize the statutes. (Washington State
Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449-450.)

                                             16.
       In conclusion, the determination of whether a particular cartridge is principally for
use in handguns may be problematic given that many cartridges are used in both
handguns and rifles. Under the principle of judicial restraint, however, I would consider
those potential problems if and when they arise. Respondents’ speculative arguments
have not convinced me that the challenged provisions are incapable of any valid
application. I would therefore hold that respondents have not demonstrated that the
challenged provisions are unconstitutional on their face and would reverse the judgment
of the trial court.
       I have not expressed an opinion as to the issue of appellant’s motion to tax costs as
the reversal I have suggested would render that issue moot.

                                                  ________________________________
                                                                CORNELL, Acting P.J.




                                            17.
