People v. Gonzalez ( 2022 )

Filed 3/3/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073987
v. (Super.Ct.No. RIF1900678)
DANIEL EDWARD GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Peter L. Spinetta, Judge.
(Retired judge of the Contra Costa Super. Ct. assigned by the Chief Justice pursuant to
art. VI, §6 of the Cal. Const.) Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
After a police officer found him asleep in his car with a bag of methamphetamine
and a loaded gun at his feet, a jury convicted Daniel Edward Gonzalez of possession of a
controlled substance while armed (Health & Saf. Code, § 11370.1), being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and being a felon in
possession of ammunition (Pen. Code, § 30305, subd. (a)). On appeal, Gonzalez
challenges the constitutionality of Health and Safety Code section 11370.1, arguing the
provision violates the Second Amendment by restricting a nonviolent offender’s right to
possess firearms.1 We conclude the argument lacks merit and affirm.
I
FACTS
Because this case involves a facial challenge to the constitutionality of a statute,
the underlying facts of Gonzalez’s crime are not relevant. (See Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 (Tobe) [“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”].) For our purposes, it suffices to say Gonzalez
was caught parked on the side of the road with about .6 grams of methamphetamine and a
1 Unlabeled statutory citations refer to the Health and Safety Code.
2
loaded, operable firearm. He was convicted of three firearm-related crimes (including the
violation of section 11370.1 at issue here) and sentenced to six years in prison.2
II
ANALYSIS
Section 11370.1 makes it a felony to possess certain controlled substances “while
armed with a loaded, operable firearm.” (§ 11370.1, subd. (a).) Gonzalez argues this
provision impermissibly infringes on the Second Amendment right to bear arms because
it targets nonviolent criminals—i.e., those in possession of controlled substances. To pass
constitutional scrutiny, Gonzalez argues, a restriction on gun possession must be limited
to “preventing violent crime.” We disagree. As the United States Supreme Court
explained in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the Second
Amendment does not grant “a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” (Heller, at p. 626.) Because “there is no
constitutional problem with separating guns from drugs” (United States v. Jackson (7th
Cir. 2009) 555 F.3d 635, 636 (Jackson)), we conclude section 11370.1 does not
contravene the Second Amendment right to bear arms as interpreted in Heller.
2 After his jury trial, Gonzalez admitted having two prior strikes on his record. His
six-year sentence consists of the three-year midterm for the section 11370.1 count,
doubled under the Three Strikes law. The court imposed, but stayed under Penal Code
section 654, sentences for the two felon-in-possession counts.
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A. Standard of Review
“In determining a statute’s constitutionality, we start from the premise that it is
valid, we resolve all doubts in favor of its constitutionality, and we uphold it unless it is
in clear and unquestionable conflict with the state or federal Constitutions.” (People v.
Yarbrough (2008) 169 Cal.App.4th 303, 311 (Yarbrough); see also Professional
Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 593 [the starting point
of our analysis is a “‘strong presumption of . . . constitutionality’”].) If we can “conceive
of a situation in which the statute can be applied without entailing an inevitable collision
with constitutional provisions, the statute will prevail.” (Yarbrough, at p. 311.)
B. Section 11370.1 Does Not Violate the Second Amendment
The Second Amendment to the United States Constitution 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 decided whether a series of Washington D.C. laws
banning the possession of operable handguns in the home violated the Second
Amendment. In answering that question in the affirmative, the Court held the right
afforded by the Second Amendment is not limited to the context of militia service.
Rather, the Court identified the “core” of the Second Amendment as protecting “the right
of law-abiding, responsible citizens to use arms in defense of hearth and home.” (Heller,
supra, 554 U.S. at pp. 634-635; see also McDonald v. City of Chicago (2010) 561 U.S.
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742, 786 (McDonald) [the Second Amendment’s right to bear arms also applies to
states].)
But in striking down D.C.’s in-home ban, the Court emphasized that “the Second
Amendment is not unlimited” and does not grant “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” (Heller, supra, 554
U.S. at p. 626.) “Nothing in our opinion,” the Court cautioned, “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.” (Id. at p. 626.) The Court described those types of
prohibitions as “presumptively lawful regulatory measures” and said the list was intended
to be exemplary, not exhaustive. (Id. at p. 627, fn. 26.) Two years later, in McDonald, the
Court “repeat[ed] [its] assurances” that the Second Amendment “does not imperil every
law regulating firearms” and that the kind of longstanding restrictions mentioned in
Heller remain presumptively valid. (McDonald, supra, 561 U.S. at p. 786.)
After Heller, federal courts developed a two-step test for assessing Second
Amendment challenges. First, the court asks “whether the challenged law burdens
conduct that falls within the scope of the Second Amendment’s guarantee” of protecting
the right of responsible, law-abiding citizens to possess firearms to protect their home.
(Gould v. Morgan (1st Cir. 2018) 907 F.3d 659, 668-669.) If the law doesn’t burden
protected conduct, then it doesn’t implicate the Second Amendment and the inquiry ends.
If, however, the law does infringe on a law-abiding citizen’s right to possess firearms to
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protect their home, then the court must inquire into “the strength of the government’s
justification” for the law by balancing—under the appropriate level of scrutiny—the
statute’s objectives against the means it employs to accomplish those ends. (Ezell v. City
of Chicago (7th Cir. 2011) 651 F.3d 684, 703 [the rigor of the means-end review is
dependent on “how close the law comes to the core of the Second Amendment right and
the severity of the law’s burden on the right”].)
Gonzalez’s constitutional challenge doesn’t get past the first step and into means-
end scrutiny. As noted, section 11370.1 makes it a felony to possess certain controlled
substances (including methamphetamine) while “armed with” a loaded, operable firearm,
meaning the gun is “available for immediate offensive or defensive use.” (§ 11370.1,
subd. (a).) Based on the provision’s legislative history, California courts have concluded
the purpose of section 11370.1 is “to protect the public and law enforcement officers and
‘“‘stop the growing menace from a very deadly combination—illegal drugs and
firearms.’”’” (In re Ogea (2004) 121 Cal.App.4th 974, 984 (Ogea), italics added, quoting
People v. Pena (1999) 74 Cal.App.4th 1078, 1082.)
While the Supreme Court has not yet delineated the precise scope of the Second
Amendment, it has made abundantly clear that its protections inure to the benefit of law-
abiding citizens only. (See Jackson , supra, 555 F.3d at p. 636 [“The Court said in Heller
that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-
protection, not for all self-protection”].) We are aware of no court decision holding that
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the United States Constitution protects a right to carry a gun while simultaneously
engaging in criminal conduct, as Gonzalez was found guilty of here.
And though we are also aware of no court to have considered whether section
11370.1 violates the Second Amendment, the law in this area is clear. A large body of
federal and out-of-state cases have upheld the constitutionality of similar drug-related
firearm restrictions. For example, in United States v. Greeno (6th Cir. 2012) 679 F.3d
510, the Sixth Circuit upheld the constitutionality of a sentence enhancement penalizing
carrying a dangerous weapon during the commission of a drug offense. The court
concluded the enhancement was “consistent with the historical understanding of the right
to keep and bear arms, which did not extend to possession of weapons for unlawful
purposes,” as any holding to the contrary “would suggest that the Second Amendment
protects an individual’s right to possess a weapon for criminal purposes.” (Id. at p. 520;
see also, e.g., United States v. Bryant (2d Cir. 2013) 711 F.3d 364, 369 (per curiam)
[recognizing “an implicit limitation” on the exercise of the Second Amendment right to
bear arms “for ‘lawful purpose[s]’” in rejecting a Second Amendment challenge to a
federal law criminalizing the possession of a firearm in furtherance of a drug trafficking
crime]; Jackson, supra, 555 F.3d at p. 636 [same]; United States v. Potter (9th Cir. 2011)
630 F.3d 1260, 1261 [same].) In People v. Cisneros (Colo.Ct.App. 2014) 356 P.3d 877,
the Colorado Court of Appeals upheld a similar enhancement in their penal code,
reasoning that because the law penalizes possession of a firearm “in connection with a
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person’s commission of a felony drug offense,” it “does not apply to law-abiding citizens
and, thus, does not infringe on the Second Amendment right to bear arms.” (Id. at p. 887.)
Chief Judge Easterbrook underscored the validity of drug-related firearm
restrictions with the following hypothetical: “Suppose a federal statute said: ‘Anyone
who chooses to possess a firearm in the home for self-protection is forbidden to keep or
distribute illegal drugs there.’ Such a statute would be valid . . . . And if Congress may
forbid people who possess guns to deal drugs, it may forbid people who deal drugs to
possess guns. The statements ‘if you have a gun, you can’t sell cocaine’ and ‘if you sell
cocaine, you can’t have a gun’ are identical.” (Jackson, supra, 555 F.3d at p. 636.) This
reasoning applies equally to section 11370.1.
Gonzalez urges us to depart from decades of well-settled Second Amendment
precedent and apply the reasoning from the dissent in Kanter v. Barr (7th Cir. 2019) 919
F.3d 437 (Kanter) to our analysis of section 11370.1. Kanter involved a Second
Amendment challenge to the federal and Wisconsin felon-in-possession laws. The
defendant, who had been convicted of mail fraud for falsely representing that his
company’s therapeutic shoe inserts were Medicare-approved and billing Medicare
accordingly, argued his status as a nonviolent offender with no other criminal record
made the dispossession statutes unconstitutional as applied to him. The majority upheld
the statutes, concluding felons are categorically excluded from the scope of the Second
Amendment. Then-Judge (now Justice) Amy Coney Barrett dissented, arguing the
historical record instead revealed that the Framers intended to restrict firearm possession
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only when doing so was necessary to protect the public safety. (Kanter, at p. 452 (dis.
opn. of Barrett, J.).) In her view, the dispossession statutes’ categorical application to all
felons was “wildly overinclusive” and, “[a]bsent evidence that Kanter would pose a risk
to the public safety if he possessed a gun, the governments cannot permanently deprive
him of his right to keep and bear arms.” (Id. at pp. 466-469.)
We decline to apply this approach to dispossession laws to our analysis of section
11370.1. First of all, it represents a dissenting or minority view of the court. The majority
view—which is consistent with California’s approach—is that applying dispossession
laws to a nonviolent felon does not violate the Second Amendment. (Kanter, supra, 919
F.3d at p. 451 (dis. opn. of Barrett, J.); People v. Delacy (2011) 192 Cal.App.4th 1481,
1486.)
Second, even if Judge Barrett’s approach were the majority view on the issue, that
issue is meaningfully distinct from the one we face here. Unlike section 11370.1,
dispossession laws prohibit individuals from possessing firearms in the future based on
their past criminal conduct. Section 11370.1, in contrast, prohibits individuals from
possessing firearms while simultaneously committing criminal activity. Kanter, the
convicted nonviolent felon, could at least argue that if he were allowed to possess
firearms, he would use them for a lawful purpose (e.g., defense of the home or certain
military purposes). Gonzalez cannot make that argument. Instead he seeks to validate his
possession of a gun for an unlawful purpose, something on which Second Amendment
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jurisprudence, for all its murkiness, is quite clear. There is no constitutional right to carry
a gun while committing a crime. (Heller, supra, 554 U.S. at p. 635.)
Plus, the type of challenge that was at issue in Kanter matters. Because Kanter
brought an as-applied challenge, the court was required to consider the fact his crime of
mail fraud involved no violence or threat to public safety. But here, because Gonzalez
brings a facial challenge, we must consider all conceivable ways in which a person could
violate section 11370.1. (Yarbrough, supra, 169 Cal.App.4th at p. 311; Tobe, supra, 9
Cal.4th at p. 1084.) Thus, the fact Gonzales’s conviction did not involve violence is
beside the point. We can easily imagine scenarios where someone who is armed with a
gun while in the process of committing a drug offense is more likely to engage in gun
violence than a person who committed mail fraud in the past.
This is because, as the People correctly point out, it is reasonable to assume a
person armed with a loaded, operable firearm during the commission of any crime may
be willing to resort to use of that weapon to avoid arrest and—in the case of section
11370.1, specifically—to maintain possession of their illicit stash. It is also reasonable to
assume that some people who have controlled substances like methamphetamine also
abuse those drugs, making their immediate access to a loaded, operable firearm more of a
threat to public safety than someone like Kanter—who isn’t in the process of committing
a crime. (See generally United States v. Yancey (7th Cir. 2010) 621 F.3d 681, 686
[upholding the constitutional validity of a statute prohibiting drug abusers from
possessing firearms based in part on “studies [that] amply demonstrate the connection
10
between chronic drug abuse and violent crime”].) Indeed, the potentially “deadly
combination” of illegal drugs and firearms is precisely what the Legislature intended to
address by enacting section 11370.1. (People v. Pena, supra, 74 Cal.App.4th at p. 1082
[observing proponents of section 11370.1 “noted that armed controlled substance abusers
posed a threat to the public and to peace officers”]; see also Ogea, supra, 121
Cal.App.4th at p. 979 [concluding violations of section 11370.1 are excluded from the list
of “nonviolent drug possession offenses” subject to treatment under Prop. 36].) As the
Supreme Court has recognized, “drugs and guns are a dangerous combination.” (Smith v.
United States (1993) 508 U.S. 223, 240.)
And finally, even if Gonzalez could persuade us to follow the Kanter dissent, his
challenge to section 11370.1 would still fail. Though Judge Barrett takes issue with
disarming a person based solely on “their status as [a] felon[],” she would allow
governments to disarm not just “those who have demonstrated a proclivity for violence”
but also those “whose possession of guns would otherwise threaten the public safety.”
(Kanter, supra, 919 F.3d at pp. 454, 458 (dis. opn. of Barrett, J.), italics added.) The latter
category encompasses those like Gonzalez who violate section 11370.1.
Simply put, nothing in the Kanter dissent’s approach to dispossession laws
suggests the Second Amendment prevents restrictions on being armed with a gun while
committing a crime. But more importantly, nothing in Heller—the relevant binding
precedent—suggests the Second Amendment limits a state’s ability to separate guns and
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drugs. We therefore reject Gonzalez’s facial challenge to section 11370.1 and affirm his
conviction.
III
DISPOSITION
We affirm the judgment.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
MENETREZ
J.
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