People v. Triana CA1/5 ( 2023 )

Filed 12/26/23 P. v. Triana CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166301
v.
ERIK TRIANA, (Contra Costa County Super. Ct.
Defendant and Appellant. No. 012200274)
In January 2022, California State Senator Scott Weiner
introduced a bill to expand access to vaccinations by allowing
teenagers to go on their own to get vaccinated. Six days later,
Erik Triana posted a threatening message on the senator’s
website: “Vax my child without my permission and expect a visit
from me and my rifle.” It was signed, “Second Amendment.”
Officers traced the threat to Triana and obtained a warrant
to search his residence. The ensuing search of his house and
SUV produced the following: a rifle bag containing a loaded
short-barreled, AR-15 style assault rifle with nine additional
loaded magazines; a loaded assault handgun; a backpack
containing a loaded pistol with no serial number and two
additional magazines; multiple parts, molds, and tools for
making, assembling, and maintaining firearms; over 700 rounds
of ammunition, including penetrating rounds used to go through
wood, glass, and structures; a handwritten diagram for making a
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silencer; and a book on how to make Molotov cocktails and other
projectile weapons using household items. Only one of the guns,
a Smith & Wesson, was registered to Triana.
Found guilty of multiple firearms offenses, Triana contends
his convictions violate the Second Amendment to the United
States Constitution as construed in New York State Rifle & Pistol
Association, Inc. v. Bruen (2022) 597 U.S. 1 (Bruen) and District
of Columbia v. Heller (2008) 554 U.S. 570 (Heller). We follow the
unanimous consensus in this state in rejecting his contentions,
and therefore affirm.
BACKGROUND
Triana was charged with threatening a state official (Pen.
Code, § 76, subd. (a))1 and making criminal threats (§ 422, subd.
(a)), both enhanced for committing offenses in multiple counties;
and two counts each of possessing a concealed firearm in a
vehicle (§ 25400, subds. (a)(1), (c)(6)), possessing an assault
weapon (§ 30605, subd. (a)), and manufacturing or assembling an
unregistered firearm (§ 29180, subd. (g)). After the trial court
overruled Triana’s demurrer to the weapons charges, a jury found
him guilty on all charges except making criminal threats.
DISCUSSION
A.
We turn first to Triana’s argument that California’s
concealed-carry law violates the Second Amendment as recently
construed in Bruen, supra, 597 U.S. 1. We review this question of
law independently, presuming the relevant statutes are
constitutional unless their unconstitutionality is clearly,
positively, and unmistakably demonstrated. (People v. Bocanegra
(2023) 90 Cal.App.5th 1236, 1250 (Bocanegra).) “Courts should
exercise judicial restraint in passing upon the acts of coordinate
1 Undesignated statutory references are to the Penal Code.
2
branches of government; the presumption is in favor of
constitutionality, and the invalidity of the legislation must be
clear before it can be declared unconstitutional.” (Dittus v.
Cranston (1959) 53 Cal.2d 284, 286.)
1.
California has a multifaceted statutory scheme for
regulating firearms. (In re D.L. (2023) 93 Cal.App.5th 144, 153
(D.L.).) The aspect of that scheme at issue here, section 25400,
subdivision (a), prohibits carrying a concealed firearm in public
on the person or in a vehicle. Nonetheless, an individual may
legally carry a concealed firearm so long as they obtain a
concealed-carry license. (§§ 25655, 26150 et seq.; see D.L., supra,
at pp. 153-155.) To that end, license applicants must prove to the
county sheriff (§ 26150) or municipal police department (§ 26155)
that they are “of good moral character;” have a sufficient
connection to the county or city; have completed a qualifying
firearms training course; and that “[g]ood cause exists for the
issuance of the license.” (§§ 26150, subd. (a), 26155.) Applicants
must also submit to fingerprinting and pass background checks.
(D.L., at p. 155.)
2.
In Heller, supra, 554 U.S. at pp. 628-629, 636, the United
States Supreme Court for the first time identified a Second
Amendment right for individuals to possess handguns in their
homes. Nonetheless, the court also reaffirmed the
constitutionality of many longstanding regulatory restrictions on
the right to bear arms, including prohibitions on the possession of
firearms by felons and the mentally ill, carrying firearms in
“sensitive places” such as schools and government buildings, and
laws regulating the commercial sale of arms. (Id. at pp. 626-627
& fn. 26.)
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More recently, the court in Bruen held that Second
Amendment protections extend to an individual’s right to carry a
handgun for self-defense outside of the home. (Bruen, supra, 597
U.S. at p. __ [142 S.Ct. at p. 2122].) Announcing a new
framework for analyzing Second Amendment challenges, the
Bruen majority held the government may not regulate conduct
that falls within the amendment’s “plain text” unless it
demonstrates the regulation is “consistent with this Nation's
historical tradition of firearm regulation.” (Id. at p. __ [142 S.Ct.
at p. 2126].) Conduct within the scope of the Second Amendment
is thus protected unless the government can identify an
“American tradition” justifying its regulation. (Id. at p. __ [142
S.Ct. at p. 2138].)
Applying this test, the court found New York’s
requirement that an applicant show “proper-cause” for a license
to publicly carry handguns did not meet that burden. (Bruen,
supra, 597 U.S. at p. __ [142 S.Ct. at p. 2156.) At the same time,
however, it clarified that the same was not true of licensing
regimes “designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘ law-abiding, responsible citizens,’ ”
contain only “ ‘narrow, objective, and definite standards’ guiding
licensing officials,” and do not involve the “ ‘appraisal of facts, the
exercise of judgment, and the formation of an opinion.’ ” (Id. at
p.__, fn. 9 [142 S.Ct. at p. 2138, fn. 9]; see also id. at p. __ [142
S.Ct. at p. 2161 (conc. opn. of Kavanaugh, J.) [Bruen “does not
prohibit States from imposing licensing requirements for carrying
a handgun for self-defense” (italics added)].)
3.
In Bruen’s immediate aftermath, California’s Attorney
General instructed the responsible agencies to stop requiring
proof of good cause for a concealed-carry license, but to continue
enforcing the remaining statutory prerequisites. (D.L., supra, 93
Cal.App.5th at pp. 148, 161-162.) Since then, every California
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appellate court to consider the point has agreed that the now-
invalid good cause requirement is severable from this state’s
remaining statutory requirements for obtaining a concealed-carry
license. (In re T.F.-G (2023) 94 Cal.App.5th 893, 916 & fn. 19;
People v. Mosqueda (2023) __ Cal.App.5th__, 2023 WL 8014119 p.
*10; D.L., at pp. 148, 163-165.) We agree with their analysis, and
accordingly conclude California’s concealed-carry regulations
remain constitutionally sound but for the licensing scheme’s now
inoperative good cause element.
Triana disagrees. He maintains Bruen rendered the
statutory prohibition against carrying concealed firearms
unconstitutional in its entirety because “no colonial regulation of
firearms . . . would have either [sic] prevented a person from
having a firearm in a motor vehicle.” We disagree. Triana’s
argument fails to acknowledge that California law does not effect
a blanket prohibition on carrying concealed guns in vehicles; to
the contrary, individuals are free to do so long as they first obtain
a concealed-carry license. Bruen makes clear that states remain
free, within constitutional boundaries, to impose such licensing
requirements: “[N]othing in our analysis should be interpreted to
suggest the unconstitutionality” of statutory licensing regimes
that “do not require applicants to show an atypical need for
armed self-defense.” (Bruen, supra, 597 U.S. at p. __, fn. 9 [142
S.Ct. at p. 2138, fn. 9.)
Triana seemingly concedes as much in his reply brief.
However, he contends the concealed-carry statute is nonetheless
unconstitutional as applied to him because “the ‘good cause’
requirement constituted an improper impediment” to the exercise
of his Second Amendment rights. The contention fails. Nothing
on the face of the pleadings indicates Triana ever applied for a
concealed-carry permit under the pre-Bruen regimen, was
dissuaded by the requirement from applying, applied and was
turned down, or could not have established good cause had he
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applied. In short, his argument fails for the reason the same
contention failed to persuade the D.L. court: Triana’s conviction
for carrying a concealed weapon simply “had nothing to do with
the ‘good cause’ licensing requirement.” (D.L., supra, 93
Cal.App.5th at p. 165.)
B.
As noted above, Triana was also convicted under section
30605, subdivision (a) of two counts of possessing an assault
weapon.2 He contends the provision violates his Second
Amendment right to bear arms under Bruen, supra, 597 U.S. 1and Heller, supra, 554 U.S. at p. 626 because, in essence, assault
weapons are commonly owned by law-abiding citizens and there
is no historical tradition of banning them. The contention has
been soundly rejected by the courts of this state, both before and
after Bruen. (Bocanegra, supra, 90 Cal.App.5th at p. 1256; People
v. Zondorak (2013) 220 Cal.App.4th 829, 836-839 (Zondorak);
People v. James (2009) 174 Cal.App.4th 662, 664, 670-674
(James).) We follow suit.
Heller reaffirmed that the Second Amendment right to
keep and bear arms is not unlimited. (Heller, supra, 554 U.S. at
p. 595.) As it observed, “[f]rom Blackstone through the 19th-
century cases, commentators and courts routinely explained” that
the constitutional right to bear arms is “not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” (Id. at p. 626; accord, Bocanegra, supra, 90
2 Under section 30605, subdivision (a), “Any person who,
within this state, possesses any assault weapon, except as
provided in this chapter, shall be punished by imprisonment in a
county jail for a period not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170.”
Sections 30510 and 30515 define “assault weapon” for purposes of
this provision.
6
Cal.App.5th at pp. 1246-1248; Zondorak, supra, 220 Cal.App.4th
at pp. 832-834; James, supra, 174 Cal.App.4th at p. 674.) While
the Heller court held the District of Columbia could not
constitutionally ban the possession of handguns in the home
(Heller, at p. 635), it also observed that “those weapons not
typically possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns,” are excluded from Second
Amendment protection. (Id. at p. 625.) Further, recognizing that
“the historical tradition of prohibiting the carrying of ‘dangerous
and unusual weapons’ ” places an “important limitation on the
right to keep and carry arms,” the court indicated that “weapons
that are most useful in military service--M-16 rifles and the like--
may be banned.” (Id. at p. 627.)
Since then, James, Zondorak, and Bocanegra have each
concluded the Second Amendment right to bear arms as
construed in Heller does not extend to assault weapons. (James,
supra, 174 Cal.App.4th at pp. 664, 670-674 [semiautomatic
assault weapons and .50-caliber BMG rifles]; Zondorak, supra,
220 Cal.App.4th at pp. 834, 836-839 [AK series automatic rifles];
Bocanegra, supra, 90 Cal.App.5th at pp. 1244, 1250-1253, 1256
[assault weapons].) This is because, as most recently explained
in Bocanegra, those firearms are dangerous and unusual
weapons not typically possessed by law-abiding citizens for lawful
purposes; rather, they are “ ‘only slightly removed from M-16-
type weapons that Heller likewise appeared to conclude were
outside the scope of the Second Amendment’s guarantee.’ ”
(Bocanegra, at pp. 1250-1251.) And, as stated in Zondorak and
James, the assault weapons prohibited by section 30605,
subdivision (a) “ ‘are at least as dangerous and unusual as the
short-barreled shotgun’ [citation], which Miller3 concluded (with
3 United States v. Miller (1939) 307 U.S. 174. The Heller
majority rejected the view that, under Miller’s interpretation, the
Second Amendment protects the use and ownership of firearms
only for certain military purposes (Heller, supra, 554 U.S. at pp.
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apparent approval from Heller) was outside the scope” of the
Second Amendment. (Zondorak, at p. 836, quoting James, at pp.
674-675)
Triana, relying various federal court opinions, argues
assault weapons have become so ubiquitous in this country that
they may not constitutionally be banned. In his view, “[a]s semi-
automatic rifles . . . are in common use by law-abiding citizens for
self-defense, they clearly qualify for Second Amendment
protection.” The argument fails. Triana has presented no
evidence or cognizable empirical support for his claim that
millions of law-abiding citizens possess and use assault weapons
for lawful purposes. Instead, he relies primarily on the
conclusion in Heller v. District of Columbia (2011) 670 F.3d 1244,
1261 (Heller II) that these weapons are in “common use,” and
observes that California is in a small minority of states to
regulate or ban them. (Triana does not acknowledge that the
Heller II court also found the record was inadequate to show the
semi-automatic rifles with high-capacity magazines at issue there
were “commonly used or are useful specifically for self-defense or
hunting and therefore whether the prohibitions of certain semi-
automatic rifles and magazines holding more than ten rounds
meaningfully affect the right to keep and bear arms.” (Ibid.).)
Heller II and the other federal authorities Triana cites are
not binding on this court (Felisilda v. FCA US LLC (2020) 53
Cal.App.5th 486, 497), and we decline to rely on the factual
conclusions in those cases absent evidence in the record before us
of the number of assault weapons in this country or the number
in common use. But even assuming they established the
621-622), reading the opinion instead to “say only that the Second
Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns.” (Id. at p. 625; but see id. at pp. 636-
681 (dis. opn. of Stevens, J.).)
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widespread possession of such weapons, a finding that a firearm
is in “common use” does not end the inquiry into whether it falls
within the ambit of the Second Amendment’s protections. The
question, rather, is whether the weapon is in “ ‘common use’ . . .
for lawful purposes like self-defense.” (Heller, supra, 554 U.S. at
p. 624, italics added.) Triana offers no support for his claim that
the firearms prohibited under section 30605, subdivision (a) are
weapons that law-abiding Americans typically possess and use
for lawful purposes. On this record, there is no reasoned basis on
which to reject this state’s unanimous precedent that Heller’s
exclusion of machine guns and M-16-type weapons from Second
Amendment protection applies to the assault weapons prohibited
under California law.
These points dispose of Triana’s contentions, so we have
no reason to reach the Attorney General’s assertions that assault
weapons are not typically possessed by law-abiding citizens for
lawful purposes and thus are not protected by the Second
Amendment (see Bocanegra, supra, 90 Cal.App.5th at p. 1250);
the firearm configurations, attachments, accessories, and parts
prohibited by section 30605 are not bearable “arms” subject to the
amendment; and, alternatively, section 30605 withstands
constitutional scrutiny because it is consistent with our nation’s
history of regulating particularly dangerous and unusual
weapons. (See Bruen, supra, 597 U.S. at pp. __ [142 S.Ct. at pp.
2131-2132, 2135-2137]; Heller, supra, 554 U.S. at p. 627.)
DISPOSITION
The judgment is affirmed.
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BURNS, J.
WE CONCUR:
JACKSON, P.J.
SIMONS, J.
People v. Triana (A166301)
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