Filed 5/30/13 P. v. Burke CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047061
                                                                       (Consol. with G047062)
         v.
                                                                       (Super. Ct. Nos. 11NF3234 &
STEVEN JOHN BURKE,                                                      11NF2951)

     Defendant and Appellant.                                          OPINION



                   Appeal from judgments of the Superior Court of Orange County, Craig E.
Robison, Judge. Affirmed.
                   Khouri Law Firm and Michael J. Khouri for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
             Defendant Steven John Burke pleaded guilty to one count of unlawful
possession of a firearm (Pen. Code, § 12021, subd. (c)(1)) (case No. 11NF2951) and two
counts of unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (case
                1
No. 11NF3234). On appeal he challenges the constitutionality of section 12021,
subdivision (c)(1) (section 12021(c)(1)), which prohibits certain misdemeanants from
possessing firearms, contending the statute violates his Second Amendment right to bear
                                                           2
arms and Fourteenth Amendment right to equal protection. We consolidated the cases
on appeal and affirm the judgments.


                                         FACTS


             Defendant offered the following facts as the basis for his guilty pleas
underlying the judgments in these consolidated appeals. On February 10, 2011, he
unlawfully possessed a firearm. On February 10 and October 5 of 2011, he unlawfully
possessed ammunition. On those dates, he was prohibited from possessing firearms or




1
              On the People’s motion, a third count of unlawful possession of
ammunition was dismissed. Defendant obtained certificates of probable cause to appeal
from the judgments based on his guilty pleas.
              All statutory references are to the Penal Code. Effective January 1, 2012,
the Legislature repealed sections 12021 and 12316. (Stats. 2010, ch. 711, § 4.) Section
29805 continues former section 12021, subd. (c)(1) without substantive change. Section
30305, subdivision (a) continues former section 12316, subdivision (b)(1) without
substantive change. For convenience of reference to the record, we will refer to the
former Penal Code sections under which these cases were filed.
2
               Without any supporting argument or citation to legal authority regarding
section 12316, subdivision (b)(1), which prohibits possession of ammunition by persons
subject to a section 12021 firearm prohibition, defendant appears to challenge its
constitutionality under the Second Amendment. This court does not address unsupported
contentions. (People v. Jones (1998) 17 Cal.4th 279, 304.)

                                            2
ammunition due to his August 28, 2003 conviction for misdemeanor assault under section
240.


                                        DISCUSSION


              Defendant challenges the constitutionality of section 12021(c)(1) under the
Second and Fourteenth Amendments of the United States Constitution. Section
12021(c)(1) prohibits a person convicted of a qualifying misdemeanor (including assault
under § 240) from owning or possessing a firearm within 10 years of the misdemeanor
conviction. Assault under section 240 is “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.”
              We first address defendant’s Second Amendment challenge to the statute.
Relying on District of Columbia v. Heller (2010) 554 U.S. 570 (Heller) and U.S. v.
Chester (4th Cir. 2010) 628 F.3d 673 (Chester), defendant urges us to apply Chester’s
standard of intermediate scrutiny to determine whether section 12021(c)(1) violates his
Second Amendment right to bear arms.
              The Second Amendment provides, “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.” In Heller, the Supreme Court held that the Second Amendment
guarantees “the individual right to possess and carry weapons in case of confrontation.”
(Heller, supra, 554 U.S. at p. 592.) Heller cautioned, however, that “the right secured by
the Second Amendment is not unlimited.” (Id. at p. 626.) Indeed, Heller identified (and
left intact) certain historically permissible restrictions on the right to bear arms:
“Although we do not undertake an exhaustive historical analysis today of the full scope
of the Second Amendment, nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and

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government buildings, or laws imposing conditions and qualifications on the commercial
sale of arms.” (Id. at pp. 626-627.) Heller further recognized existing prohibitions on
carrying concealed weapons (id. at p. 626) or “‘dangerous and unusual weapons’” (id. at
p. 627). Heller clarified that its list did “not purport to be exhaustive” and that it
identified “these presumptively lawful regulatory measures only as examples.” (Id. at p.
627, fn. 26.)
                Heller then turned to the District of Columbia law at issue there, which
“totally ban[ned] handgun possession in the home[ and] also require[d] that any lawful
firearm in the home be disassembled or bound by a trigger lock at all times, rendering it
inoperable.” (Heller, supra, 554 U.S. at p. 628.) The Supreme Court held the law was
unconstitutional. (Id. at pp. 628-629.) The high court explained that the Second
Amendment protects a person’s right to possess a handgun in the home for self-defense
and protection of family and property. (Heller, at p. 628.) The Supreme Court declared
that the District of Columbia’s ban of handguns from the home failed constitutional
muster under any standard, thus expressly leaving open the question of the applicable
standard of scrutiny. (Id. at pp. 628-629, 634.) Heller did suggest, however, that rational
basis scrutiny would be insufficient: “If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amendment would be redundant
with the separate constitutional prohibitions on irrational laws, and would have no
effect.” (Id. at p. 628, fn. 27.)
                In Heller’s aftermath, the Court of Appeal in People v. Flores (2008) 169
Cal.App.4th 568 (Flores) upheld section 12021(c)(1) against a Second Amendment
challenge under facts similar to those before us. (Flores, at pp. 573, 577.) The
defendant’s section 12021(c)(1) conviction was based on his prior misdemeanor assault
conviction under “section 245, subdivision (a)(1), which prohibits ‘an assault upon the
person of another . . . by any means of force likely to produce great bodily injury.’”
(Flores, at p. 574). Flores observed that section 12021, subdivision (a)’s prohibition of

                                               4
felons from possessing firearms falls into one of Heller’s recognized permissible
restrictions. (Flores, at p. 574.) As to misdemeanants, Flores reasoned: “If, as Heller
emphasizes, the Second Amendment permits the government to proscribe the possession
of a firearm by any felon (including nonviolent offenders), we can see no principled
argument that the government cannot also add certain misdemeanants, particularly those
who have committed an assault by ‘means of force likely to produce great bodily injury.’
[Citation.] The public interest in a prohibition on firearms possession is at its apex in
circumstances, as here, where a statute disarms persons who have proven unable to
control violent criminal impulses.” (Id. at p. 575.)
              Subsequently, People v. Delacy (2011)192 Cal.App.4th 1481 (Delacy)
involved another Second Amendment challenge to section 12021(c)(1)’s prohibition on
misdemeanants’ possession of firearms. (Delacy, at p. 1485.) The predicate
misdemeanor in Delacy was battery under section 242 (Delacy, at p. 1485), which defines
battery as “‘any willful and unlawful use of force or violence upon the person of
another’” (Delacy, at p. 1492). The defendant urged the appellate court to apply strict
                                                                    3
scrutiny to strike down section 12021(c)(1). (Delacy, at p. 1488.) The appellate court
found it unnecessary to apply any standard of scrutiny balancing the statute’s objectives
against its means because, under Heller and Flores, section 12021(c)(1) is a
presumptively lawful regulation (insofar as it prohibits “firearm possession by
misdemeanants who have shown a propensity to commit violence against others”) and is
therefore immune from means-end scrutiny. (Delacy, at p. 1492; see also U.S. v.
Marzzarella (3d Cir. 2010) 614 F.3d 85, 91 [Heller’s recognized historic restrictions are
presumptively lawful not because “they pass muster under any standard of scrutiny,” but,
rather, because they “regulate conduct outside the scope of the Second Amendment” and
“are exceptions to the right to bear arms”].) Delacy noted that appellate courts were
3
              “When strict scrutiny applies, a law is constitutional only if it is ‘necessary
to achieve a compelling state interest.’” (Id. at p. 1488, fn. 4.)

                                              5
“generally unanimous in rejecting the application of means-end scrutiny to statutes
disqualifying felons and certain misdemeanants from weapons possession until an en
banc decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614
F.3d 638 (Skoien) and, more recently, . . . Chester[, supra,] 628 F.3d 673 . . . , which
follows Skoien.” (Id. at p. 1490.) Delacy disagreed with Skoien’s application of
intermediate scrutiny to determine the constitutionality of Heller’s presumptively valid
restrictions. In Delacy’s view, “the Skoien approach gives too little weight to the
‘presumptively lawful’ language of Heller.” (Delacy, at p. 1490.)
              Here, defendant urges us to apply the intermediate scrutiny standard
advocated by Chester, where the Fourth Circuit adopted “a two-part approach to Second
Amendment claims.” (Chester, supra, 628 F.3d at p. 680.) The Chester approach asks
whether the challenged law restricts conduct historically protected by the Second
Amendment and, if so, whether (under the intermediate scrutiny standard) there is a
reasonable fit between the law and a substantial government objective. (Chester, at pp.
680, 683.) Chester concluded that (1) “the possession of a firearm in the home by a
domestic violence misdemeanant” (id. at p. 680) was not necessarily excluded from
Second Amendment protection, (2) therefore the defendant was “entitled to some
measure of Second Amendment protection to keep and possess firearms in his home for
self-defense” (id. at pp. 681-682), and (3) the government bore the burden of justifying
the challenged law under the appropriate standard of scrutiny (id. at p. 682). Chester
reached this conclusion, however, only because the government there did not contend that
the challenged law involved conduct unprotected by the Second Amendment and because
of the lack of historical evidence on this issue in the record. (Chester, at p. 682.)
              We agree with Flores and Delacy that gun possession by an assault or
battery misdemeanant is not conduct historically protected by the Second Amendment.
Accordingly, we hold that section 12021(c)(1)’s prohibition on gun possession by a
person convicted of misdemeanor assault under section 240 (which requires “an unlawful

                                              6
attempt, coupled with a present ability, to commit a violent injury”) is a presumptively
lawful restriction and immune from constitutional means-ends scrutiny. Furthermore,
this case is distinguishable from Chester because the Attorney General argues here that
defendant “committed a misdemeanor crime of violence” and under Flores and Delacy
does not qualify for Second Amendment protection.
              Defendant also challenges the constitutionality of section 12021(c)(1) on
equal protection grounds under the Fourteenth Amendment of the United States
Constitution. Focusing on voting rights, he argues that, although the Supreme Court has
“upheld states’ right to disenfranchise ex-felons,” as to misdemeanants it has “held that
the Fourteenth Amendment prohibited states from disenfranchising persons convicted of
misdemeanors, even if the crimes involved moral turpitude.” For this proposition he
relies on Hunter v. Underwood (1985) 471 U.S. 222, 223. Contrary to defendant’s
representation, Hunter held that an Alabama law violated equal protection because its
“original enactment was motivated by a desire to discriminate against blacks on account
of race” and the law’s racially discriminatory effect was ongoing. (Id. at p. 233.)
Furthermore, as stated by the Attorney General here, “[a]llowing a person who has a
demonstrated inability to control his violent criminal impulses to possess a firearm raises
concerns for public safety that are not present in allowing the same person to vote.”




                                             7
                                DISPOSITION


          The judgment is affirmed.



                                          IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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