People v. Olson CA4/1 ( 2024 )

Filed 5/13/24 P. v. Olson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082081
Plaintiff and Respondent,
v. (Super. Ct. No. SCD294958)
PERRY JOEL OLSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David L. Berry, Judge. Reversed and dismissed in part, affirmed in part, and
remanded with directions.
Brad J. Poore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff
and Respondent.
Perry Joel Olson was convicted for possessing an assault weapon (Pen.
Code, § 30605, subd. (a); count 1) and carrying a loaded firearm (§ 25850,
subd. (a); count 3.) He appeals on three grounds.
First, Olson claims his conviction for carrying a loaded firearm must be
reversed and dismissed because no evidence was presented on an element of
the offense. We accept the People’s concession to this claim. Second, Olson
argues his conviction for possessing an assault weapon must be reversed
because section 30605, part of the Roberti-Roos Assault Weapons Control Act
of 1989 (the Act), violates the Second Amendment of the United States
Constitution under the framework of N.Y. State Rifle & Pistol Ass’n v. Bruen
(2022) 597 U.S. 1 (Bruen). We conclude Olson failed to satisfy his burden of
demonstrating error, given the insufficiency of the record and briefing on this
issue. Finally, Olson asserts his trial counsel provided ineffective assistance
by failing to object to section 30605’s constitutionality. However, the trial
court was bound by case law finding section 30605 constitutional, so trial
counsel did not provide ineffective assistance by failing to make a meritless
argument. We thus reverse and dismiss the judgment as to count 3, affirm
the judgment as to count 1, and remand with directions.
I.
In June 2022, two San Diego Police Department officers on patrol
contacted Olson, who was sleeping in the back of his vehicle, because his
vehicle’s registration was expired. The officers told Olson they had to
impound his vehicle. As Olson was retrieving his belongings, one officer
noticed a firearm in Olson’s waistband. The officer detained Olson and seized
the firearm, a loaded handgun. The officers searched a rifle bag Olson had
removed from the vehicle and found, in addition to a shotgun and a variety of
ammunition, a center fire semiautomatic assault rifle, capable of receiving a
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detachable magazine, with a forward pistol grip, a pistol grip protruding
conspicuously beneath the rifle, a telescoping buttstock, and a muzzle brake.
Olson and the People waived their right to a jury trial. At the
March 2023 bench trial, Olson testified he was a homeless military veteran
who had been living in California for roughly a week before his arrest.
Although he had firearm permits in other states, he had not yet been able to
comply with California gun laws.
The trial court found Olson guilty of counts 1 and 3. At sentencing, the
court reduced count 1 to a misdemeanor, sentenced Olson to three days of
custody with the sheriff (time served), declined to impose probation, and
ordered Olson’s firearms destroyed.
II.
A.
Olson first argues the trial court, in convicting him of carrying a loaded
firearm, misconstrued an element of the offense for which no evidence was
presented, requiring reversal and dismissal of his conviction. We accept the
People’s concession and agree that count 3 must be reversed and dismissed.
“A person is guilty of carrying a loaded firearm when the person carries
a loaded firearm on the person or in a vehicle while in any public place or on
any public street in an incorporated city.” (§ 25850(a), italics added.) At the
prosecutor’s urging, the trial court interpreted the “in an incorporated city”
requirement to apply only to a “public street” and not a “public place,” and
the court found Olson guilty on the basis that he was in a public place. In so
doing, the trial court “want[ed] the record clear” that “no evidence was
presented, no judicial notice was taken that the city of San Diego is an
incorporated city.”
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The trial court, however, was bound to follow People v. Knight (2004)
121 Cal.App.4th 1568 (Knight). Knight rejected the very construction of
section 12031(a)(1) (subsequently recodified as § 25850(a)) the prosecutor
incorrectly advanced and that the trial court adopted. (Id. at p. 1576.) We
therefore accept the People’s concession that (1) section 25850(a) was
misconstrued and (2) insufficient evidence—indeed, as the People
acknowledge, “no evidence”—was presented as to whether the City of
San Diego is an incorporated city. Accordingly, we reverse and dismiss
Olson’s conviction for count 3. (People v. Anderson (2009) 47 Cal.4th 92, 104
[double jeopardy prohibits retrial upon reversal for insufficient evidence].)
B.
Olson next argues his conviction for possessing an assault weapon must
be reversed because section 30605(a) facially violates the Second Amendment
under Bruen. Olson acknowledges his trial counsel failed to raise this
argument below. Nonetheless, the People assume the challenge “is not
forfeited because facial constitutional challenges may generally be raised for
the first time on appeal.”
Generally, a criminal defendant forfeits a challenge—even on
constitutional grounds—not raised in the trial court. (In re Sheena K. (2007)
40 Cal.4th 875, 880-881.) Our Supreme Court has recognized that cases
“involv[ing] pure questions of law that can be resolved without reference to
the particular . . . record developed in the trial court,” however, fall within a
narrow exception to the forfeiture rule. (People v. Welch (1993) 5 Cal.4th 228,
235.) “Facial” challenges to a statute’s constitutionality, which “consider[ ]
only the text of the measure itself” and not its application to certain scenarios
(Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084), fall within this
exception.
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Here, even accepting Olson’s Second Amendment challenge is facial
(see In re D.L. (2023) 93 Cal.App.5th 144,157 [recognizing constitutional
challenges to gun regulations based on Bruen as facial challenges]), the
record and briefing are inadequate to facilitate the intensive textual and
historical analysis Bruen requires.
The Second Amendment protects “the right of the people to keep and
bear arms.” (U.S. Const., 2nd Amend.) In District of Columbia v. Heller
(2008) 554 U.S. 570 (Heller), the Supreme Court “held that the
Second Amendment protects the right to possess a handgun in the home for
the purpose of self-defense.” (McDonald v. City of Chicago (2010) 561 U.S.
742, 791.) Two years later, the Supreme Court confirmed that right applies
equally to the states. (Ibid.) After Heller, most courts adopted a “‘two-step’
framework . . . combin[ing] history with means-end scrutiny” in analyzing
Second Amendment challenges. (Bruen, supra, 597 U.S. at p. 17.)
Bruen, however, disclaimed means-end scrutiny in Second Amendment
cases as “one step too many.” (Bruen, supra, 597 U.S. at p. 19.) Although
Olson asserts Bruen “announced a new standard,” that is not so; Bruen itself
says it merely “reiterate[d]” and “made . . . more explicit” the analytical
approach set forth in Heller, “which demands a test rooted in the
Second Amendment’s text, as informed by history.” (Bruen, at pp. 19, 24, 31.)
Under Bruen, “[w]hen the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct.”
(Bruen, supra, 597 U.S. at p. 24.) Determining whether that presumption
attaches is “Bruen step one.” (United States v. Alaniz (9th Cir. 2023) 69 F.4th
1124, 1128 (Alaniz).) At Bruen step two, “[t]he government must then justify
its regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” (Bruen, at p. 24.) In Bruen, step
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one was undisputed. (Id. at pp. 31-33.) The Supreme Court accordingly
focused on assessing the State of New York’s historical evidence to determine
whether the challenged statute accorded with founding-era firearm
regulations. (Id. at pp. 33-70.)
In the roughly two years since, state and federal courts across the
country have struggled to apply Bruen—including at step one, given Bruen’s
limited analysis of that step. (See, e.g., In re Appeal of the Gun Range, LLC
(Pa. Commw. Ct., Feb. 27, 2024, No. 90 C.D. 2021) 2024 Pa.Commw.Lexis 68,
at pp. *18-*22 [analyzing whether Second Amendment protects an implied
right to engage in commercial sale of arms at step one]; United States v.
Jackson (D.Md. 2023) 661 F.Supp.3d 392, 400-405 [grappling with whether
Second Amendment applies to indicted, as opposed to convicted, persons at
step one].) However, federal district court decisions demonstrate that
deciding the issues most courts agree are relevant to step one’s “threshold”
determination—“whether the challenger is part of the people whom the
Second Amendment protects, whether the weapon at issue is in common use
today for self-defense, and whether the proposed course of conduct falls
within the Second Amendment” (Alaniz, supra, 69 F.4th at p.1128 [cleaned
up])—requires, unlike a typical facial challenge, looking beyond the text of
the challenged regulation itself.
The two California district court decisions that have analyzed the Act’s
constitutionality post-Bruen are representative. Miller v. Bonta (S.D.Cal.,
Oct. 19, 2023, No. 19-cv-01537 BEN (JLB)) 2023 U.S.Dist. Lexis 188421, at
p. *98 (Miller), found the Act unconstitutional. In assessing both steps, the
court relied at length on evidence—including the testimony of experts on gun
violence and history—presented by the parties. (See id. at pp. *67-*85.)
Rupp v. Bonta (C.D.Cal., Mar. 15, 2024, No. 8:17-cv-00746-JLS-JDE)
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2024 U.S.Dist. Lexis 46430, at pp. *21-*93 (Rupp), came to the opposite
conclusion, relying on a similarly detailed evidentiary record comprising
expert opinion testimony. Bruen itself acknowledged that courts, in deciding
the legal questions raised in Second Amendment cases, were “entitled to
decide a case based on the historical record compiled by the parties.” (Bruen,
supra, 597 U.S. at p. 25, fn. 6, italics added.)
Because Olson did not raise this challenge in the trial court, no such
record exists here. Nor does his appellate briefing make a meaningful effort
to engage in Bruen’s history- and fact-intensive analysis. In his opening
brief, Olson simply claims that modern rifles like the AR-15, as the “‘civilian
version of the military’s M-16 rifle,’” are not weapons “‘most useful in military
service’” and therefore cannot be banned as “‘dangerous and unusual
weapons.’” (Heller, supra, 554 U.S. at pp. 627-628; Staples v. United States
(1994) 511 U.S. 600, 603.) He ignores California case law finding AR-15’s
“dangerous and unusual” and thus unprotected by the Second Amendment.
(See People v. James (2009) 174 Cal.App.4th 662, 676-677 (James); People v.
Zondorak (2013) 220 Cal.App.4th 829, 836-838 (Zondorak).) Olson also
asserts “there is no historical tradition of the regulation of non-military grade
weapons.” But that statement is simply incorrect. As the People note, Heller
distilled from a much earlier U.S. Supreme Court case, United States v.
Miller (1939) 307 U.S. 174, the rule that the Second Amendment does not
protect weapons, like short-barreled shotguns, “not typically possessed by
law-abiding citizens for lawful purposes.” (Heller, at p. 625.) Olson’s opening
brief ultimately fails to meaningfully engage with Bruen step one and is
therefore inadequate to meet his burden on appeal of establishing error.
Even if it is proper to consider Olson’s citation to Miller on reply that
assault weapons are not unusual because “Americans today own 24.4 million
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modern rifles” (Miller, supra, Lexis 188421, at p. *5), the significance of that
number, while seemingly large in isolation, “can accurately be assessed only
when contextualized by a denominator,” which Olson does not provide.
(Rupp, supra, Lexis 46430, at p. *46.) Nor do Olson’s appellate briefs
meaningfully address what proportion of such modern rifles are used for self-
defense as opposed to other uses, lawful or otherwise (see, e.g., id. at pp. *39-
*45), or the meaningful distinctions, if any, in the operability of modern rifles
as compared to regulatable military-grade weapons (see Bevis v. City of
Naperville (7th Cir. 2023) 85 F.4th 1175, 1193-1197 [concluding, based on
firing rate, ammunition used, kinetic energy, muzzle velocity, and range that
challenger failed to establish the AR-15 is meaningfully different from the M-
16]). Most courts post-Bruen have placed the burden at step one on the
challenger to the gun regulation, and Olson’s threadbare analysis cannot
satisfy that burden. (See Rupp, at pp. *20-*21.)
Accordingly, as Olson failed to adequately brief his Second Amendment
challenge on appeal, we cannot address its merits. (See People v. Cabrera
(N.Y.Ct.App., Nov. 21, 2023, No. 65) 2023 N.Y. Lexis 1891, at pp. *21-*22
[declining to reach merits of facial challenge to gun regulation raised initially
on appeal because “the record before us . . . does not permit a meaningful
determination on the merits” given Bruen’s “complex inquiry”].)
Ultimately, the trial court is best suited to engage in the analysis
Bruen requires, assisted by a record replete with relevant factual and
historical evidence offered by the parties. Where such a record has been
developed and the parties’ briefs on appeal fully address Bruen’s two prongs,
an appellate court can meaningfully assess the facial constitutionality of a
challenged gun regulation. But such is not the case here.
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C.
Finally, Olson argues his trial counsel provided ineffective assistance of
counsel in failing to challenge the constitutionality of section 30605(a) in the
trial court. We conclude Olson’s trial counsel did not provide ineffective
assistance.
To establish ineffective assistance of counsel, the defendant must show
both that: (1) “counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms,” and (2) “there is a
reasonable probability”—one that “undermine[s] confidence in the
outcome”—“that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984)
466 U.S. 668, 688, 694.) Failing “to make futile objections[ or] advance
meritless arguments” is not ineffective assistance of counsel. (People v. Jones
(1979) 96 Cal.App.3d 820, 827.)
Here, as the People acknowledge, objecting to the constitutionality of
section 30605(a) was meritless and futile. California appellate court
decisions “are binding . . . upon all the superior courts of this state.” (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) United States
Supreme Court decisions as to federal questions are binding on all federal
and state courts. (James v. City of Boise (2016) 577 U.S. 306, 307.) Unless
the United States Supreme Court has decided the same question differently
from a California appellate court, the lower state courts must follow the law
declared by the higher state courts. (Truly Nolen of America v. Superior
Court (2012) 208 Cal.App.4th 487, 507.)
At the time Olson was charged with and convicted of violating
section 30605(a), James and Zondorak already had found section 30605 (or
its substantively unchanged predecessor) did not violate the
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Second Amendment right to bear arms because assault weapons are
sufficiently “dangerous and unusual” to fall outside the scope of the
Second Amendment’s protection. (James, supra, 174 Cal.App.4th at pp. 676-
677; Zondorak, supra, 220 Cal.App.4th at pp. 836-838.) We thus agree with
the People and our sister court in People v. Bocanegra (2023) 90 Cal.App.5th
1236, 1256, that, because “[n]either James nor Zondorak relied on the means-
end scrutiny component in rejecting constitutional challenges to the” Act, the
cases are not directly abrogated by Bruen.
While Bruen denounced means-end scrutiny in analyzing
Second Amendment challenges, it did not decide differently the same
question resolved by James and Zondorak. Bruen fundamentally endorsed
Heller’s text- and history-based approach to Second Amendment challenges,
and both James and Zondorak applied Heller without resorting to means-end
analysis. (Bruen, supra, 597 U.S. at p. 26; James, supra, 174 Cal.App.4th at
pp. 676-677; Zondorak, supra, 220 Cal.App.4th at pp. 836-838.) The trial
court, therefore, was bound to follow James and Zondorak’s determination
that section 30605(a) is constitutional because assault weapons fall outside
the scope of firearms protected by the Second Amendment, despite Olson’s
insufficiently developed argument to the contrary. Accordingly, it was not
below an objective standard of reasonableness, and thus not ineffective
assistance of counsel, for Olson’s trial counsel to not challenge the
constitutionality of section 30605(a).
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III.
We reverse and dismiss Olson’s conviction on count 3 and affirm his
conviction on count 1. We remand this matter to the trial court to amend the
April 18, 2023 Felony Minutes – Pronouncement of Judgment consistent with
this opinion.
CASTILLO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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