People v. Jimenez CA2/5 ( 2023 )

Filed 12/27/23 P. v. Jimenez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B323963
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA102583)
v.
LUIS DANIEL JIMENEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Amy N. Carter, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Breana Frankel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Stephanie Miyoshi and Thomas
C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
Police discovered a semi-automatic rifle with various
statutorily prohibited features in a vehicle in which defendant
Luis Daniel Jimenez (defendant), a prior felon, was a passenger.
A jury found defendant guilty of being a felon in possession of a
firearm and possessing an assault weapon. We are asked to
decide whether the criminal statutes on which the convictions
rest are unconstitutional in light of the Supreme Court’s ruling in
New York State Rifle & Pistol Association, Inc. v. Bruen (2022)
597 U.S. 1. We also consider whether defendant’s convictions are
supported by substantial evidence and whether the trial court
abused its discretion in denying defendant’s Romero1 motion at
sentencing.
I. BACKGROUND
A. The Evidence at Trial
Los Angeles County Sheriff’s Deputy Dorian Ventura was
on patrol with his partner in the Lennox neighborhood around
7:00 p.m. on August 2, 2020. The deputies spotted a white
Chevrolet Tahoe that matched the description of a vehicle
involved in a crime that the appellate record does not reveal. The
Tahoe backed into a parking spot outside a marijuana
dispensary, and the deputies stopped their patrol car a few yards
away with the two vehicles facing one another. Deputy Ventura
saw three people inside the Tahoe: one in the driver’s seat, one in
the front passenger seat, and one in a rear passenger seat. He
identified defendant as the person in the front passenger seat.
Deputy Ventura testified the Tahoe’s occupants “almost
instantaneously” opened the doors and attempted to flee.
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2
Defendant, who had a cast on his leg, took a few steps but “did a
sighing motion of defeat” and raised his hands. Deputy Ventura
detained defendant while his partner apprehended the person
from the rear passenger seat. Neither Deputy Ventura nor his
partner chased the driver, who got away.
Deputy Ventura observed a firearm through the Tahoe’s
open passenger door. The weapon was between the front
passenger seat and the center console, with the muzzle facing
downward. Deputy Ventura also found a shell casing on “the
front passenger side door window ledging.”
The firearm, which has no serial number, was displayed at
trial. It is a semi-automatic, centerfire rifle less than 30 inches
in length with a telescoping stock, pistol grip, detachable
magazine, and flash suppressor.2
Deputy Ventura testified defendant made a Mirandized
admission that he was in the Tahoe but denied he owned the
vehicle. A notice of release of liability on file with the DMV,
however, revealed defendant had recently purchased the Tahoe
but had not yet registered it in his name. The seller lived on the
same street as defendant.
At defendant’s later trial on the possession of an assault
weapon and possession of a firearm by a felon charges, he
testified he had never seen the Tahoe before and he did not know
why his name was on the notice of release of liability. Defendant
claimed his girlfriend dropped him off at the marijuana
2
Deputy Ventura testified the rifle is equipped with a binary
trigger system, meaning that it fires both when the trigger is
pulled and when it is released, i.e., “one trigger stroke could do
two shots[.]” In this sense, he described the rifle as “beyond
semiautomatic.”
3
dispensary and after a few minutes inside, defendant walked out
and saw the deputies’ vehicle stopped “nose-to-nose” with the
Tahoe. Defendant saw one of the sheriff’s deputies pursue the
Tahoe’s fleeing driver, and when the deputy returned to the
parking lot covered in dirt and leaves without apprehending the
driver, defendant testified he laughed. At that point, defendant
claimed the deputy “g[o]t real mad” and arrested him.
B. Verdict and Sentencing
The jury convicted defendant on both the possession of a
firearm by a felon (Pen. Code,3 § 29800, subd. (a)(1)) and
possession of an assault weapon (§ 30605, subd. (a)) charges. The
jury also found true an allegation that defendant had been
convicted of making criminal threats (§ 422) in 2016, served a
prior term in prison, and was on probation, supervision, or parole
at the time of the crimes of conviction.
The trial court denied defendant’s motion to strike or
dismiss his prior conviction. The court imposed a sentence of six
years in state prison for possession of a firearm by a felon: the
high term of three years doubled pursuant to the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12). The trial court did not
impose a sentence for possession of an assault weapon but stated
“[c]ount [three] is now stayed pursuant to Penal Code section
654.”
3
Undesignated statutory references that follow are to the
Penal Code.
4
II. DISCUSSION
Defendant contends the provisions of sections 29800 and
30605 at issue in this appeal are unconstitutional on their face.
The United States Supreme Court’s articulation of the Second
Amendment right to bear arms in District of Columbia v. Heller
(2008) 554 U.S. 570, however, was careful to emphasize that the
right should not be understood to “cast doubt on longstanding
prohibitions on the possession of firearms by felons and the
mentally ill” and was limited so as not to transgress the historical
“prohibit[ion] [on] the carrying of ‘dangerous and unusual
weapons.’” (Id. at 626-627.) The high court has not since
repudiated the contours of the Second Amendment right defined
in Heller—including in Bruen, which holds regulation of conduct
covered by the Second Amendment must be “consistent with the
Nation’s historical tradition of firearm regulation.” (Bruen,
supra, 597 U.S. at 24.) Because the criminal laws at issue here
doubly fall outside the scope of the Second Amendment right as
defined in Heller (i.e., defendant was convicted for possessing the
rifle as a felon and the rifle qualifies as “dangerous and
unusual”), defendant’s constitutional challenge fails.
Defendant’s remaining arguments fail too. As to the
sufficiency of the evidence, Deputy Ventura’s testimony that
defendant was seated immediately adjacent to the gun—
particularly in combination with the notice of release of liability
indicating the Tahoe belonged to defendant—is substantial
evidence he had constructive possession of the gun. As to the
trial court’s decision to deny defendant’s Romero motion, the
court’s ruling, which accounted for all relevant factors including
the nature of defendant’s offenses and his background, character,
and prospects, was not an abuse of discretion.
5
A. We Exercise Our Discretion to Consider Defendant’s
Arguments in His Opening Brief, Raised for the First
Time on Appeal
In the trial court, defendant did not argue section 29800,
subdivision (a)(1) and section 30605, subdivision (a) were
unconstitutional. Defendant nevertheless urges us not to hold
the argument he makes now to be forfeited because, in his view,
the Supreme Court’s opinion in Bruen—issued the day after
defendant’s sentencing—upended the “well-settled” principle that
the criminal prohibitions in these laws do not violate the Second
Amendment. We will disregard the forfeiture, but only insofar as
defendant’s contention that the statutes are unconstitutional on
their face relies on Bruen.
Defendant’s attempt to raise an as-applied constitutional
challenge to section 29800, subdivision (a)(1) for the first time in
his appellate reply brief, on the other hand, is a different matter.
Defendant contends his prior conviction was not a violent felony
and “there is substantial precedent for differentiating between
violent and nonviolent felons . . . .” This argument, which the
Attorney General did not have an opportunity to address in his
respondent’s brief, is forfeited. (People v. Rangel (2016) 62
Cal.4th 1192, 1218 [“‘Obvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief’”].)
B. Overview of the Supreme Court’s Construction of the
Second Amendment Right to Bear Arms from Heller
to Bruen
“A well-regulated militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall
6
not be infringed.” (U.S. Const., 2d Amend.) Beginning with
Heller in 2008, the Second Amendment has been understood to
“protect an individual right to keep and bear arms for self-
defense” (Bruen, supra, 597 U.S. at 17), albeit subject to certain
exceptions that are important for our purposes. Our summary of
Heller and its progeny focuses on the two exceptions implicated
by this appeal: prohibitions against felons possessing firearms
and prohibitions against dangerous and unusual weapons.
1. Heller
The high court in Heller held the District of Columbia’s
“ban on handgun possession in the home violates the Second
Amendment, as does its prohibition against rendering any lawful
firearm in the home operable for the purpose of immediate self-
defense.” (Heller, supra, 554 U.S. at 635.) Reasoning that the
reference to a “well regulated Militia” in the Second
Amendment’s “prefatory clause” does not “limit” the operative
clause and instead “announces a purpose” (id. at 577), the Court
emphasized self-defense is “the central component” of the Second
Amendment right (id. at 599). In other words, the role of the
prefatory clause is to explain why the pre-existing “fundamental
right[ ] of Englishmen” to keep and bear arms for self-defense (id.
at 594) was written into the Constitution while other such rights
were not: “[T]he threat that the new Federal Government would
destroy the citizens’ militia by taking away their arms was the
reason that right—unlike some other English rights—was
codified in a written Constitution.” (Id. at 599.)
The Court was careful to caution, however, that the right
secured by the Second Amendment is “not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for
7
whatever purpose.” (Id. at 626.) Although the Court did “not
undertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment,” it emphasized “nothing in [its]
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.” (Ibid.) The high court also emphasized this list of
“presumptively lawful regulatory measures” did “not purport to
be exhaustive.” (Ibid., fn. 26.)
The high court in Heller “also recognize[d] another
important limitation on the right to keep and carry arms.”
(Heller, supra, 554 U.S. at 627.) Harmonizing its holding with
United States v. Miller (1939) 307 U.S. 174 (Miller), which
affirmed the defendant’s conviction for illegally transporting a
short-barreled shotgun under the National Firearms Act,4 the
Court held “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful
purposes . . . .” (Heller, supra, at 625.) The Court observed that
4
Miller reasoned that, “[i]n the absence of any evidence
tending to show that possession or use of a ‘shotgun having a
barrel of less than eighteen inches in length’ at this time has
some reasonable relationship to the preservation or efficiency of a
well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an
instrument. Certainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment or that its
use could contribute to the common defense.” (Miller, supra, 307
U.S. at 178.)
8
restricting Second Amendment protection to weapons “‘in
common use at the time’” is “fairly supported by the historical
tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.’ [Citations.]” (Id. at 627.)
When discussing the dangerous and unusual weapon
limitation on the Second Amendment’s right to bear arms, the
high court cited “M-16 rifles and the like” as examples of weapons
that are proper subjects of regulation. (Heller, supra, 554 U.S. at
627.) The Court observed that although “[i]t may well be true
today that a militia, to be as effective as militias in the 18th
century, would require sophisticated arms that are highly
unusual in society at large[,] . . . the fact that modern
developments have limited the degree of fit between the prefatory
clause and the protected right cannot change our interpretation
of the right.” (Id. at 627-628.)
2. McDonald
In McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742(McDonald), the Supreme Court considered a challenge to local
laws in Illinois similar to the District of Columbia scheme struck
down in Heller. (McDonald, supra, 561 U.S. at 750.) Justice
Alito’s majority opinion held the Second Amendment “right to
keep and bear arms for the purpose of self-defense” recognized in
Heller applies to the states through the Due Process Clause of the
Fourteenth Amendment. (Id. at 750.) Notably for our purposes,
the opinion for the court expressly reaffirmed Heller (id. at 767-
768), and a portion of Justice Alito’s opinion joined by three other
Justices also “repeat[ed] [the] assurances” given in Heller that
nothing in the Court’s Second Amendment jurisprudence should
“cast doubt on such longstanding regulatory measures as
9
‘prohibitions on the possession of firearms by felons and the
mentally ill . . . .’” (Id. at 786.)
3. Bruen
Most recently in Bruen, the United States Supreme Court
considered a challenge to a New York law conditioning the grant
of a license to carry a concealed handgun on a showing of proper
cause, which New York courts construed to mean a
demonstration of the applicant’s special need for self-defense.
(Bruen, supra, 597 U.S. at 12.)
Writing for a six-justice majority, Justice Thomas rejected
the means-end scrutiny that some lower courts used to assess the
constitutionality of laws regulating firearms following Heller.
(Bruen, supra, 597 U.S. at 19.) According to that approach,
courts first asked whether challenged laws regulated activity
falling outside the scope of the Second Amendment right as
originally understood. (Id. at 18.) If so, the law was valid; if not,
courts analyzed “‘how close the law [came] to the core of the
Second Amendment right and the severity of the law’s burden on
that right.’ [Citation.]” (Ibid.)
Bruen held this two-step approach included “one step too
many.” (Bruen, supra, 597 U.S. at 19.) As explained by the high
court, “the standard for applying the Second Amendment is as
follows: When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects
that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation. Only then may a court conclude
that the individual’s conduct falls outside the Second
Amendment's ‘unqualified command’ [Citation.]” (Id. at 24.) To
10
meet its burden, the government need only “identify a well-
established and representative historical analogue, not a
historical twin. So even if a modern-day regulation is not a dead
ringer for historical precursors, it still may be analogous enough
to pass constitutional muster.” (Id. at 30.)
The Bruen Court began its analysis of the challenged New
York law by emphasizing that none of the exceptions discussed in
Heller applied. (Bruen, supra, 597 U.S. at 31-32 [“It is
undisputed that [the plaintiffs]—two ordinary, law-abiding, adult
citizens—are part of ‘the people’ whom the Second Amendment
protects. [Citation.] Nor does any party dispute that handguns
are weapons ‘in common use’ today for self-defense”].) The Court
then determined the proposed activity—carrying handguns in
public for self-defense—falls within the plain text of the Second
Amendment and surveyed potential historical antecedents for the
state’s proper-cause requirement. (Id. at 32-33.) Finding only “a
handful of late-19th-century jurisdictions” regulated “the public
carry of commonly used firearms for self-defense” and no
“historical tradition limiting public carry only to those law-
abiding citizens who demonstrate a special need for self-defense,”
the Court held the proper-cause requirement was
unconstitutional. (Id. at 38-39.)
The Court stressed that “nothing in [its] analysis should be
interpreted to suggest the unconstitutionality of . . . licensing
regimes [that] do not require applicants to show an atypical need
for armed self-defense . . . .” (Bruen, supra, 597 U.S. at 38, fn. 9.)
Among other things, the Court emphasized that such regimes,
“which often require applicants to undergo a background check or
pass a firearms safety course, are designed to ensure only that
11
those bearing arms in the jurisdiction are, in fact, ‘law-abiding,
responsible citizens’” covered by the Second Amendment. (Ibid.)
Justice Kavanaugh, joined by Chief Justice Roberts, wrote
separately to “underscore” that licensing regimes without a
proper-cause requirement—as well as the presumptively lawful
firearm regulations first identified in Heller—remain valid.
(Bruen, supra, 597 U.S. at 79-80 (conc. opn. of Kavanaugh, J.);
see also id. at 80-81 (conc. opn. of Kavanaugh, J.) [quoting
passages in Heller and McDonald explaining the Second
Amendment right to bear arms is “not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose” and declining to cast doubt on prohibitions on
the possession of firearms by felons or the historical tradition of
prohibiting the carrying of dangerous and unusual weapons].) In
a separate concurring opinion, Justice Alito likewise emphasized
that Bruen did not “disturb[ ] anything that we said in Heller or
McDonald . . . about restrictions that may be imposed on the
possession or carrying of guns.” (Id. at 72 (conc. opn. of Alito, J.).)
C. Section 29800, Subdivision (a)(1) Is Constitutional on
Its Face
Section 29800, subdivision (a)(1) provides, in pertinent
part, that “[a]ny person who has been convicted of a felony under
the laws of the United States, the State of California, or any
other state, government, or country, or [certain firearm
offenses] . . . and who owns, purchases, receives, or has in
possession or under custody or control any firearm is guilty of a
felony.”
As mentioned, plaintiff’s opening brief presents only a
facial challenge to this statute. “‘“‘To support a determination of
12
facial unconstitutionality, . . . [challengers] cannot prevail by
suggesting that in some future hypothetical situation
constitutional problems may possibly arise as to the particular
application of the statute.’”’ [Citation.] Rather, the ‘minimum’
our cases have accepted is a showing that the statute is invalid
‘in the generality or great majority of cases.’ [Citations.]” (People
v. Buenrostro (2018) 6 Cal.5th 367, 388; see also Americans for
Prosperity Foundation v. Bonta (2021) ___ U.S. ___ [141 S.Ct.
2373, 2387] [“Normally, a plaintiff bringing a facial challenge
must ‘establish that no set of circumstances exists under which
the [law] would be valid,’ [citation], or show that the law lacks ‘a
plainly legitimate sweep’”].)
Defendant does not come close to meeting that minimum
showing here. As we have already cataloged, the high court has
repeatedly reaffirmed that the Second Amendment right to bear
arms its recent decisions recognize is a right that does not disturb
longstanding prohibitions on the possession of firearms by felons.
The felon firearm possession prohibition found in section 29800,
subdivision (a)(1), which is a continuation without substantive
change of a statutory prohibition that long predates Heller
(Stats.1953, ch. 36, p. 654, § 1), falls squarely within the type of
undoubtedly legitimate prohibition the high court has recognized.
(People v. Alexander (2023) 91 Cal.App.5th 469, 479.)
Although the Court in Heller did not “undertake an
exhaustive historical analysis . . . of the full scope of the Second
Amendment” (Heller, supra, 554 U.S. at 626), the majority was
not agnostic about whether its list of presumptively lawful
regulatory measures, including felon in possession of firearms
laws, were historically justified. Responding to Justice Breyer’s
dissent “chid[ing]” the majority for, among other things, “not
13
providing extensive historical justification for those regulations of
the right that [it] describe[d] as permissible,” the majority
emphasized “there will be time enough to expound upon the
historical justifications for the exceptions we have mentioned if
and when those exceptions come before us.” (Id. at 635.)
Moreover, the majority viewed its list or presumptively
constitutional firearms laws as potentially under-inclusive—
because the list “[did] not purport to be exhaustive” (id. at 627,
fn. 26)—and gave no indication that it might somehow be over-
inclusive.
Some courts, focusing on the factual scenario presented in
Heller itself (the case concerned an outright ban on the
possession of handguns), observe that the case does not
definitively resolve all aspects of who may lawfully possess a
firearm, when or where they may do so, or how they may obtain
the weapon. (See, e.g., United States v. Scroggins (5th Cir. 2010)
599 F.3d 433, 451; People v. Odell (2023) 92 Cal.App.5th 307,
317.) That is true, but it does not undermine the conclusion we
have drawn—based on repeated admonitions from the high court
itself (see, e.g., McDonald, supra, 561 U.S. at 742)5—about the
scope of the right to bear arms that the court recognized. (See,
e.g., United States v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1115
5
Although Heller’s list of presumptively lawful regulatory
measures was only quoted in Justice Kavanaugh’s concurring
opinion in Bruen, the six-justice majority opinion is replete with
references to the right of “law-abiding” citizens to carry a
handgun for self-defense. (See, e.g., Bruen, supra, 597 U.S. at 8;
Odell, supra, 92 Cal.App.5th at 317 [“It was no accident the
Bruen majority repeated the qualifier ‘law-abiding’ some 13
times”].)
14
(Vongxay) [“Courts often limit the scope of their holdings, and
such limitations are integral to those holdings”]; see also United
States v. Skoien (7th Cir. 2010) 614 F.3d 638, 641 (en banc)
[“whether or not technically dictum,” courts “must respect”
Heller’s remarks concerning presumptively lawful regulatory
measures “given the Supreme Court’s entitlement to speak
through its opinions as well as through its technical holdings”].)
Indeed, the validity of felon-dispossession laws appears to have
been a core assumption of the opinion for the court in Bruen,
which distinguished the challenged New York law from licensing
regimes that “do not require applicants to show an atypical need
for armed self-defense.” (Bruen, supra, 597 U.S. at 38, fn. 9].)
The Court reasoned the “objective criteria” (id. at 11) assessed in
these licensing regimes, which, among other things, “often
require applicants to undergo a background check . . . , are
designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” (Id.
at 38, fn. 9], quoting Heller, supra, 554 U.S. at 635).
In addition, and contrary to defendant’s suggestion that
Bruen requires the Attorney General to present a review of
historical sources to justify Section 29800, subdivision (a)(1),
Bruen’s discussion of Heller confirms this is unnecessary. As
Bruen explains, “Whether it came to defining the character of the
right (individual or militia dependent), suggesting the outer limits
of the right, or assessing the constitutionality of a particular
regulation, Heller relied on text and history.” (Bruen, supra,597
U.S. at 22, italics added; see also id. at 21 [“After holding that the
Second Amendment protected an individual right to armed self-
defense, [Heller] also relied on the historical understanding of the
Amendment to demark the limits on the exercise of that right”].)
15
There is little profit in requiring the People to duplicate work the
Supreme Court undertook in authoring its opinion in Heller, even
if the majority did not show all its work in that case. (See, e.g.,
Hatfield v. Barr (7th Cir. 2019) 925 F.3d 950, 953 [“If the subject
were something other than a felon-dispossession statute, the
Attorney General would bear a burden of justification”].)
D. Section 30605, Subdivision (a)’s Prohibition on
Possessing the Rifle in This Case, Which Includes a
Pistol Grip Among Other Prohibited Features, Is
Constitutional on Its Face
1. Overview of relevant statutes
Subject to exceptions not applicable here, section 30605,
subdivision (a) prohibits the possession of “any assault weapon.”
Sections 30510 and 30515 define an “assault weapon” both by
identifying specific firearms according to their manufacturer and
model or series (§ 30510) and by reference to just the features
certain firearms may have (§ 30515). It is the feature-based
definition that is implicated in this appeal.
The trial court’s instruction on the assault weapon charge
in this case was derived from section 30515, subdivision (a).
Among other things, the subdivision states an assault weapon
includes (1) a semi-automatic, centerfire rifle that does not have a
fixed magazine but has either a pistol grip that “protrudes
conspicuously beneath the action of the weapon,” a thumbhole
stock, a folding or telescoping stock, a grenade launcher or flare
launcher, a flash suppressor, or a forward pistol grip; (2) a semi-
automatic, centerfire rifle that has a fixed magazine with the
capacity to accept more than 10 rounds; and (3) a semi-automatic,
16
centerfire rifle that has an overall length of less than 30 inches.6
(§ 30515, subd. (a)(1)-(3).) The semi-automatic, centerfire rifle
displayed at trial qualifies as an assault weapon under section
30515, subdivision (a)(1) because, at a minimum, it does not have
a fixed magazine and features a telescoping stock, a flash
suppressor, and a pistol grip that protrudes conspicuously
beneath the action of the weapon.7 It also qualifies as an assault
weapon under section 30515, subdivision (a)(3) because it is less
than 30 inches long.
2. The high court’s approach to restrictions on
dangerous and unusual weapons
Heller explains the Second Amendment right to bear arms
does not prohibit regulation of “weapons not typically possessed
by law-abiding citizens for lawful purposes . . . .” (Heller, supra,
554 U.S. at 625.) The Court provided two examples of such
6
The binary trigger system that the gun in this case has
does not figure into this statutory definition of an assault
weapon. Section 32900 does separately prohibit the possession of
“any multiburst trigger activator,” but defendant was not charged
with violating section 32900.
7
As set forth in California Code of Regulations, title 5471,
section 5471(z), a “‘[p]istol grip that protrudes conspicuously
beneath the action of the weapon’ means a grip that allows for a
pistol style grasp in which the web of the trigger hand (between
the thumb and index finger) can be placed beneath or below the
top of the exposed portion of the trigger while firing. . . .” This
regulation applies to section 30515 pursuant to California Code of
Regulations, title 5460. A photograph of defendant’s weapon
submitted in evidence at trial shows it satisfies this definition.
17
“dangerous and unusual weapons”: the short-barreled shotgun at
issue in its 1939 decision in Miller and “weapons that are most
useful in military service—M-16 rifles and the like . . . .” (Id. at
625, 627.)
Heller further explains the scope of the Second Amendment
does not expand with every advance in weapons technology.
(Heller, supra, 554 U.S. at 627-628 [“It may well be true today
that a militia, to be as effective as militias in the 18th century,
would require sophisticated arms that are highly unusual in
society at large. . . . But the fact that modern developments have
limited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right”].)
At the same time, the Court also emphasized that the
constitutional right to bear arms is not limited to weapons that
existed in the 18th century.8 (Id. at 582 [“the Second Amendment
8
We do not read Heller’s limitation of the right to bear arms
to weapons “‘in common use’” (Heller, supra, 554 U.S. at 627) to
require a granular and comprehensive review of gun ownership
statistics to discern the line dividing permissible from
impermissible regulation. Miller did not examine such figures in
concluding that short-barreled shotguns are not protected, and
Heller did not address the number of “M-16 rifles and the like” in
circulation when it suggested such weapons may be “banned.”
(Id. at 627.) Moreover, mere statistics on the relative scarcity or
ubiquity of a weapon may well be due to factors that are not
relevant to Heller’s analytical approach. Instead, the analysis of
whether a weapon is dangerous and unusual is focused on
historical analogy (ibid. [compiling 17th and 18th century sources
in support of “the historical tradition of prohibiting the carrying
of ‘dangerous and unusual weapons’”]) and courts must consider
“how and why the regulations burden a law-abiding citizen’s
right to armed self-defense” (Bruen, supra, 597 U.S. at 29).
18
extends, prima facie, to all instruments that constitute bearable
arms, even those that were not in existence at the time of the
founding”]; accord Bruen, supra, 597 U.S. at 28 [“even though the
Second Amendment’s definition of ‘arms’ is fixed according to its
historical understanding, that general definition covers modern
instruments that facilitate armed self-defense”].)
On the question of how the government may regulate
firearms, Heller explains our historical traditions accommodate
categorical bans on certain types of weapons. (Heller, supra, 554
U.S. at 627 [referencing “the sorts of weapons protected” by the
right to keep and carry arms].) Although the Court overruled the
District of Columbia’s ban on handgun possession in the home in
Heller, it did not signal that categorical bans on certain types of
weapons are unprecedented. Rather, it emphasized the
exceedingly broad scope of the challenged ban on a class of
weapon “that the American people have considered . . . to be the
quintessential self-defense weapon.” (Id. at 629.) Indeed, as
already discussed, the Heller Court indicated that bans on other
classes of weapon may be lawful.9 (Id. at 627 [contemplating a
9
Several of the Founding-era sources cited in Heller point to
the “terror”-inducing qualities inherent in certain classes of
weaponry, without regard to the manner in which the weapon
was used or the identity of the person in possession. (See, e.g., 4
Blackstone, Commentaries (1769) 148-149 [“The offence of riding
or going armed, with dangerous or unu[s]ual weapons, is a crime
again[s]t the public peace, by terrifying the good people of the
land; and is particularly prohibited by the [S]tatute of
Northampton [citation] upon pain of forfeiture of the arms, and
impri[s]onment during the king’s plea[s]ure: in like manner as,
by the laws of Solon, every Athenian was finable who walked
about the city in armour”], italics omitted; 3 Wilson, Works of the
19
“ban[ ]” on “weapons that are most useful in military service”]; id.
at 623 [“Miller stands . . . for the proposition that the Second
Amendment right, whatever its nature, extends only to certain
types of weapons”].)
On the question of why a regulation may burden the right
to self-defense, Heller suggests a weapon’s potential utility for
self-defense does not necessarily immunize it from regulation. In
its discussion of the reasons that a person “may prefer a handgun
[to a long gun] for home defense,” the Court emphasized features
that would similarly give the short-barreled shotgun at issue in
Miller an advantage over a long gun.10 And in stating that “M-16
Honourable James Wilson (1804) 79 [stating that a person may
commit a crime against the personal safety of the citizens by
“arm[ing] himelf with dangerous and unusual weapons, in such a
manner, as will naturally diffuse a terrour among the people”];
Dunlap, The New-York Justice (1815) 8 [“It is likewise said to be
an affray, at common law, for a man to arm himself with
dangerous and unusual weapons, in such manner as will
naturally cause terror to the people”].)
10
As discussed in Heller, a person might favor a handgun
because “[i]t is easier to store in a location that is readily
accessible in an emergency; it cannot easily be redirected or
wrestled away by an attacker; it is easier to use for those without
the upper-body strength to lift and aim a long gun; it can be
pointed at a burglar with one hand while the other hand dials the
police.” (Heller, supra, 554 U.S. at 629.) With the possible
exception of the last example, all of these considerations might
make a short-barreled shotgun preferable to a long gun.
Additionally, for a shooter concerned about the risk to people
other than his or her intended target, the reduction in muzzle
velocity might make a short-barreled shotgun preferable for self-
defense in the home.
20
rifles and the like” are susceptible to regulation, the Court did
not suggest that such weapons have no self-defense applications.
(Hanson v. District of Columbia (D.D.C. Apr. 20, 2023, No. 22-
2256 (RC)) ___ F.Supp.3d ___, ___ [2023 WL 3019777, *8] [“A
weapon may have some useful purposes in both civilian and
military contexts, but if it is most useful in military service, it is
not protected by the Second Amendment”]; People v. Zondorak
(2013) 220 Cal.App.4th 829, 837 [“‘[I]t cannot be the case that
possession of a firearm in the home for self-defense is a protected
form of possession under all circumstances. By this rationale,
any type of firearm possessed in the home would be protected
merely because it could be used for self-defense. Possession of
machine guns or short-barreled shotguns—or any other
dangerous and unusual weapon—so long as they were kept in the
home, would then fall within the Second Amendment. But the
Supreme Court has made clear the Second Amendment does not
protect those types of weapons’”].)
3. Application
Summarizing what we have just discussed, Heller and its
progeny establish that a class of weapon may be regulated as
dangerous and unusual, notwithstanding its potential utility for
self-defense, if it is most useful in military service (Heller, supra,
554 U.S. at 627) or if it is “not typically possessed by law-abiding
citizens for lawful purposes” (id. at 625). We now apply these
principles and conclude the assault weapon restrictions in section
21
30515, subdivision (a) that are at issue in this case are not
facially unconstitutional.11
As explained earlier, the rifle that the jury found defendant
to have possessed qualifies as an assault weapon under section
30515, subdivision (a)(3) (it is a semi-automatic, centerfire rifle
less than 30 inches long) and for several reasons under section
30515, subdivision (a)(1) (it is a semi-automatic, centerfire rifle
that does not have a fixed magazine but has a telescoping stock, a
flash suppressor, and a pistol grip that protrudes conspicuously
beneath the action).12
In determining whether the combination of proscribed
features at issue in this case renders defendant’s weapon most
useful in military service, we do not undertake a direct
comparison to the M-16. Our record does not include M-16
specifications, and even if it did, the fact that defendant’s weapon
was outfitted with a binary trigger system complicates any
attempt to compare rate of fire, which some have emphasized as
11
Because defendant presents only a facial challenge to his
conviction, we need only reach a conclusion that any one of these
features defining, and consequently banning, an assault weapon
suffices to bring a weapon with that feature within the scope of
weapons that are not typically possessed by law-abiding citizens
for lawful purposes. For the sake of completeness, however, the
discussion that follows treats all of the statutorily prohibited
features as a group.
12
The Attorney General contends “the Second Amendment
does not protect accessories and configurations that are not
essential to the operation of firearms.” Even if this argument is
correct and dispositive as to section 30515, subdivision (a)(1), it
does not extend to section 30515, subdivision (a)(3).
22
a material difference between semi-automatic assault weapons
and automatic weapons like the M-16. (See, e.g., Heller v.
District of Columbia (D.C. Cir. 2011) 670 F.3d 1244, 1288-1289
(dis. opn. of Kavanaugh, J.).) More fundamentally, it would be
difficult to compare a list of proscribed features to a specific
weapon with its full suite of features. (See Kolbe v. Hogan (4th
Cir. 2017) 849 F.3d 114 [in comparing prohibited weapons to an
M-16, “[t]he relevant question is not . . . whether they have this
or that single feature in common with a non-banned firearm.
Rather, the issue is whether [they] possess an amalgam of
features that render [them] like M16s and most useful in military
service”], disapproved on another ground in Bruen, supra, 597
U.S. at 18-19.)
Regardless of whether the features that qualify defendant’s
gun as an assault weapon may be useful in civilian self-defense
scenarios, the advantages they confer over weapons that do not
qualify as assault weapons serve a predominately military
purpose. Defendant’s weapon is configured for portability and
maneuverability plus the capacity to sustain rapid fire for an
extended period over a relatively long distance. While the line
between weapons most useful in civilian life and weapons most
useful in military service may not always be clear, this
combination of attributes is martial in focus. (See Bevis v. City of
Naperville (7th Cir. 2023) 85 F.4th 1175, 1195 [rejecting a
constitutional challenge to, among other laws, the Protect Illinois
Communities Act (Pub. Act 102-1116 (2023)].)
The Fourth Circuit’s en banc decision in Kolbe, supra, 849
F.3d 114 helps to illustrate the point. Kolbe upheld a Maryland
statute that banned, among other things, “a semiautomatic
centerfire rifle that has an overall length of less than 29 inches”
23
or “can accept a detachable magazine” and “has any two of the
following: 1. a folding stock; 2. a grenade launcher or flare
launcher; or 3. a flash suppressor . . . .” (Kolbe, supra, 849 F.3d
at 122.) Considering whether these features render banned
weapons most useful in military service, the court held it was
“uncontroverted” that they do, citing evidence “reflecting that the
banned assault weapons are designed to ‘kill[ ] or disabl[e] the
enemy’ on the battlefield, and that ‘[t]he net effect of [their]
military combat features is a capability for lethality—more
wounds, more serious, in more victims—far beyond that of other
firearms in general, including other semiautomatic guns.’” (Id. at
144.)
The United States Supreme Court has held that the Second
Amendment protects Californians’ right to possess other guns,
but the provisions of section 30515, subdivision (a) that outlaw
possession of the firearm in this case are facially constitutional.
E. Substantial Evidence Supports Defendant’s
Convictions
When considering a challenge to the sufficiency of the
evidence to support a criminal conviction, we review the record
“‘in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Westerfield (2019) 6
Cal.5th 632, 713.) Here, defendant contends there was no
substantial evidence that he had either actual or constructive
possession of the gun recovered from the Tahoe to support his
convictions.
24
“‘“A defendant has actual possession when the weapon is in
his [or her] immediate possession or control,”’ i.e., when he or she
is actually holding or touching it. [Citations.]” (People v. Bay
(2019) 40 Cal.App.5th 126, 132.) Constructive possession,
however, requires only that the defendant “‘knowingly exercised
a right to control the prohibited item, either directly or through
another person.’ [Citation.]” (Ibid.) Constructive possession
need not be exclusive. (People v. Miranda (2011) 192 Cal.App.4th
398, 410 [“Possession may be imputed when the [item in
question] is found in a place which is immediately accessible to
the joint dominion and control of the accused and another”].) And
although prior cases have held that “mere proximity to [a]
weapon, standing alone, is not sufficient evidence of possession”
(People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417,
disapproved on another ground in People v. Farwell (2018) 5
Cal.5th 295, 304, fn. 6), the requisite “inference of dominion and
control is easily made when the [item in question] is discovered in
a place over which the defendant has general dominion and
control: his residence [citation], his automobile [citation], or his
personal effects [citation].” (People v. Jenkins (1979) 91
Cal.App.3d 579, 584.)
Deputy Ventura testified defendant was seated
immediately next to the gun and shell casing, and documentary
evidence revealed he was the Tahoe’s owner. The fact that
defendant was in the passenger seat does not undermine the
inference of dominion and control permitted by Jenkins, supra, 91
Cal.App.3d at page 584 because defendant acknowledged he
could not drive with his broken leg. And even if this were a close
case, defendant’s abortive attempt to flee reflects a consciousness
of guilt that further supports a finding of constructive possession.
25
(Bay, supra, 49 Cal.App.5th at 133.) Defendant’s protest that his
own testimony denying any connection to the Tahoe somehow
defeats the notice of release of liability and Deputy Ventura’s
testimony fails because the jury was entitled to find defendant
was not credible. (People v. Ware (2022) 14 Cal.5th 151, 167.)
F. The Trial Court Did Not Abuse Its Discretion in
Denying Defendant’s Romero Motion
1. Additional background
Prior to sentencing, defendant filed a Romero motion to
strike or dismiss his prior strike conviction based on the
differences between the current offense conduct and his prior
offense and defendant’s role as a provider for his family. The
trial court denied defendant’s motion. It considered, among other
things, “the fact that . . . defendant took the witness stand in his
own defense and told a story that was . . . preposterous in
denying responsibility,” his conviction for possession of
ammunition by a felon in November 2021 (based on offense
conduct occurring about a week before his arrest in this case),
and several other prior offenses, including sustained petitions for
possession of a dangerous weapon and possession of live
ammunition as a juvenile.13 The trial court concluded defendant’s
“background, character and prospects put him precisely within
the four corners of exactly what the Legislature and the voters
13
The probation report on which the trial court relied also
indicated that, “[p]er probation records[,] . . . defendant is a
documented member of the criminal street gang ‘Lennox 13’ and
goes by the moniker ‘Flat Face’ and ‘Chops.’”
26
intended that [the Three Strikes law] would address, which is
revolving door criminals who keep picking up new cases.”
2. Relevant legal principles
Under section 1385, subdivision (a), a judge may, “either on
motion of the court or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be
dismissed.” “‘In Romero, [our Supreme Court] held that a trial
court may strike or vacate an allegation or finding under the
Three Strikes law that a defendant has previously been convicted
of a serious and/or violent felony, on its own motion, “in
furtherance of justice” pursuant to . . . section 1385(a).’
[Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 373.)
“‘[I]n ruling whether to strike or vacate a prior serious
and/or violent felony conviction allegation or finding under the
Three Strikes law . . . or in reviewing such a ruling, the court in
question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’ [Citation.]” (Carmony,
supra, 33 Cal.4th at 377.)
We review the trial court’s decision not to dismiss a prior
felony conviction allegation under section 1385 for abuse of
discretion. (Carmony, supra, 33 Cal.4th at 378.) The standard is
deferential. (Id. at 378; People v. Myers (1999) 69 Cal.App.4th
305, 310 [“Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in
27
conformity with the spirit of the law, we shall affirm the trial
court’s ruling, even if we might have ruled differently in the first
instance”].)
3. Application
Here, defendant contends the trial court should have given
greater weight to what he considers the non-violent nature of
both the current offense and of his prior conviction for making
criminal threats. Even assuming that is the right view of the
current and prior offense, defendant’s criminal conduct does not,
however, take him outside the spirit of the Three Strikes law.
(People v. Strong (2001) 87 Cal.App.4th 328, 344.) In addition,
nothing in the record indicates the specific circumstances of
either this case or defendant’s prior case merit a departure from
the Three Strikes law. Defendant’s attempt to characterize the
offense conduct giving rise to his conviction for making criminal
threats as “a misunderstanding between two individuals at a bus
stop” is based on an unsupported assertion in his Romero motion.
Defendant also contends the trial court should have given
greater weight to evidence that he was stably employed and
providing for his family. The trial court considered the many
character letters submitted by defendant’s family and others, but
these letters omit significant details regarding defendant’s
circumstances. Defendant asserted, for example, that he was
“gainfully employed,” but there are no details regarding how long
he had been employed and whether he worked full-time. In any
case, rather than reflecting positively on defendant’s character
and prospects, the trial court determined defendant “ha[d] not
taken advantage of family support and ha[d] decided . . . to
pursue a criminal lifestyle.” That is a reasonable conclusion to
28
draw. In addition, the record reflects the criminal conduct here
was not an aberration or an isolated mistake by someone making
a genuine effort to reform: defendant was still on parole for his
2016 conviction for making criminal threats at the time of his
arrest in this case and he had been separately charged for
possession of ammunition only about a week earlier.
Considering the full record, we hold the court appropriately
balanced the relevant factors and did not abuse its discretion in
determining that defendant is within the spirit of the Three
Strikes law.
G. The Trial Court Must Impose a Sentence for
Possession of an Assault Weapon on Remand
The trial court’s decision to “stay” punishment for
possession of an assault weapon without imposing a sentence was
error. “[W]hen a trial court determines that section 654 applies
to a particular count, the trial court must impose sentence on
that count and then stay execution of that sentence. There is no
authority for a court to refrain from imposing sentence on all
counts, except where probation is granted. And failing to impose
sentence on all counts can lead to procedural difficulties if the
count on which sentence was imposed is later reversed or
vacated.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.)
We invited defendant and the Attorney General to submit
supplemental briefs addressing this issue, and both agree
remand is necessary. We shall reverse the sentence and remand
for the trial court to pronounce a sentence on all counts and stay
execution under section 654 as necessary. (People v. Taylor
(1971) 15 Cal.App.3d 349, 353 [“In a case where the court fails to
pronounce judgment with respect to counts on which convictions
29
were validly obtained, the Court of Appeal has power to remand
for the purpose of pronouncement of a judgment in accordance
with the verdict. [Citation.] When such a mistake is discovered
while [the] defendant’s appeal is pending, the appellate court
should affirm the conviction and remand the case for a proper
sentence”].)
DISPOSITION
Defendant’s sentence is reversed and the cause is
remanded for resentencing consistent with this opinion. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
30