Filed 12/6/13 P. v. Burts CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065261
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12901379)
                   v.

EMMANUEL BEN BURTS,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Denise L.
Whitehead, Judge.
         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Kane, J. and Poochigian, J.
       Defendant Emmanuel Ben Burts was convicted by jury of being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1)1 and being a felon in
possession of ammunition (§ 30305, subd. (a); count 2). He admitted a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced him to seven years in prison.
       On appeal, defendant contends the two statutes that prohibit a felon from
possessing a firearm and ammunition violate his constitutional right to bear arms under
the Second Amendment of the United States Constitution. We conclude that the statutes
in question do not contravene defendant’s Second Amendment rights as interpreted by
the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570
(Heller).
       The Second Amendment of the United States Constitution states: “A well
regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” (U.S. Const., 2d Amend.) “The Second
Amendment protects an individual’s right to possess and carry weapons in case of
confrontation. (Heller, supra, 554 U.S. at pp. 592, 595.) The Second Amendment is
fully applicable to the states by the due process clause of the Fourteenth Amendment.
(McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020].)” (People v.
Ellison (2011) 196 Cal.App.4th 1342, 1347.) Heller explained, however, that “[l]ike
most rights, the right secured by the Second Amendment is not unlimited. From
Blackstone through the 19th-century cases, commentators and courts routinely explained
that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. [Citations.] For example, the majority of the
19th-century courts to consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state analogues. [Citations.]
1      All statutory references are to the Penal Code unless otherwise noted.



                                              2.
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
government buildings, or laws imposing conditions and qualifications on the commercial
sale of arms.” (Heller, supra, at pp. 626-627, italics added, fn. omitted.) The court noted
that this list includes examples of “presumptively lawful regulatory measures.” (Id. at
p. 627, fn. 26.)
          Defendant attempts to minimize these statements in Heller as dicta, but we decline
to disregard this clear language upholding the prohibition of the possession of firearms by
felons.2 Recent case law also supports this view. (See, e.g., People v. Flores (2008) 169
Cal.App.4th 568 [statute prohibiting possession of firearm by persons convicted of
certain misdemeanors]; People v. Delacy (2011) 192 Cal.App.4th 1481 [same].) The
reasoning and explanation in Heller and these more recent cases satisfy us that the
statutes prohibiting a felon from possessing a firearm and ammunition are presumptively
lawful regulatory measures that do not infringe on defendant’s Second Amendment
rights.
                                       DISPOSITION
          The judgment is affirmed.




2     We note that Heller also does not have an effect on the prohibition against
possession of ammunition because if a felon cannot possess a firearm, there is no
apparent reason to allow him to possess ammunition.



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