People v. Vu CA4/3

Filed 8/30/23 P. v. Vu CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061610
v. (Super. Ct. No. 19CF1757)
BRANDON MATTHEW VU, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Andre
Manssourian, Judge. Affirmed.
Siri Shetty, 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 Heather
B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant contends his convictions for possessing a firearm and
ammunition as a felon violate the Second Amendment right to bear arms, as interpreted
by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v.
Bruen (2022) __ U.S. __ [142 S.Ct. 2111] (Bruen). However, Bruen and its progeny
make clear that right applies only to law-abiding, responsible citizens. Because appellant
has rather spectacularly demonstrated he is not such a person, we reject his constitutional
challenge and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of June 25, 2019, appellant and Orlando Arballo
confronted a man on a sidewalk in Santa Ana. During the encounter, Arballo brandished
a gun and took the man’s wallet, headphones and phone charger. Then he and appellant
left the scene in a black Mercedes Benz that was waiting in the area.
About 20 minutes later, the Mercedes pulled up to three teenagers in a
nearby neighborhood. Arballo and appellant exited the vehicle with guns and ordered the
teens to turn over their property, which they did. As before, Arballo and appellant got
away in the Mercedes, but not for long.
That night, the police spotted the Mercedes on the roadway in Santa Ana.
When they tried to pull it over, the vehicle sped off and crashed into a post. At that point,
Arballo and a woman fled the vehicle on foot, while appellant remained behind in the
backseat. After he was arrested, the police found two firearms and a bag of ammunition
in the car, and more ammunition in appellant’s shirt pocket. Appellant’s DNA was found
on one of the firearms, and Arballo’s DNA was found on the other.
At trial, the parties stipulated appellant had previously been convicted of a
felony. The jury found him guilty of four counts of robbery and one count each of
possessing a firearm as a felon and possessing ammunition as a felon. (Pen. Code, §§
211/212.5, subd. (c), 29800, subd. (a)(1), 30305, subd. (a)(1); all further statutory
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references are to this code.) It also found he personally used a firearm during the teen
robberies. (§ 12022.53, subd. (b).)
Appellant admitted suffering a prior strike and a prior serious felony
conviction, as well as serving two prior prison terms. (§§ 667, subds. (b)-(i), 1170.12,
667, subd. (a)(1), 667.5, subd. (b).) The trial court sentenced him to 23 years in prison,
representing 8 years for the robberies, 10 years for the firearm enhancement, and 5 years
for the prior serious felony conviction. Concurrent terms were imposed on the remaining
counts.
DISCUSSION
Appellant contends the gun and ammunition laws he was convicted of
violating – sections 29800 and section 30305 – are facially unconstitutional under the
Second Amendment.1 We disagree.
The Second Amendment 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.” (U.S. Const., 2d Amend.) Because this right is fundamental to
our nation’s scheme of ordered liberty, it applies to the states through the due process
clause of the Fourteenth Amendment. (McDonald v. City of Chicago (2010) 561 U.S.
742 (McDonald).) However, like all other constitutional rights, the Second Amendment
right to bear arms is limited; it does not allow people “to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” (District of Columbia
v. Heller (2008) 554 U.S. 570, 626 (Heller).)
Heller illustrates this important point. There, the high court ruled the
Second Amendment generally allows people to have handguns in their home for self-
defense. However, the court framed its ruling in a limiting fashion, saying it protected
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Section 29800 makes it a crime for any person who has been convicted of a felony to own,
purchase, receive, or possess any firearm, and section 30305 bars felons from owning, possessing, or having under
their custody or control, any ammunition or reloaded ammunition.
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“the right of law-abiding, responsible citizens to use arms in defense of hearth and
home.” (Heller, supra, 554 U.S. at p. 635, italics added.) It also emphasized, “nothing in
our opinion should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons . . . .” (Id. at p. 626; accord, McDonald, supra, 561 U.S. at p. 786
[repeating that caveat].)
In last year’s Bruen decision, the high court extended Heller to include the
right to carry a handgun for self-defense outside the home. In so doing, the court
clarified that the judicial standard for assessing gun laws does not involve a means-end
analysis of the government’s purported justification for the law in question. (Bruen,
supra, 142 S.Ct. at p. 2127.) Although some lower federal courts had interpreted Heller
as requiring such an analysis, Bruen rejected that approach. Instead, it formulated the
following test for applying the Second Amendment:
“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.]” (Bruen, supra,
142 S.Ct. at pp. 2129-2130.)
As to the threshold question of whether the Second Amendment covers the
conduct in question, Bruen again signaled the scope of the amendment was limited to
law-abiding citizens. In fact, Justice Thomas made this apparent in the opening
paragraph of his majority opinion when he explained, “In [Heller] and [McDonald] we
recognized that the Second and Fourteenth Amendments protect the right of an ordinary,
law-abiding citizen to possess a handgun in the home for self-defense. In this case,
petitioners and respondents agree that ordinary, law-abiding citizens have a similar right
to carry handguns publicly for their self-defense. We too agree[.]” (Bruen, supra, 142
S.Ct. at p. 2122, italics added.)
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Thereafter, Justice Thomas used the phrase “law-abiding” a dozen more
times to describe “the people” whose rights the Second Amendment was intended to
protect. (Bruen, supra, 142 S.Ct. at pp. 2124-2156.) He also recognized that states
commonly use background checks on gun applicants to ensure that only “law-abiding,
responsible citizens” are allowed to acquire firearms. (Id. at p. 2138, fn. 9.)
The concurring and dissenting Justices agreed with this limitation. (See,
e.g., Bruen, supra, 142 S.Ct. at p. 2159 (Alito, J., concurring) [the Second Amendment
codifies the right of law-abiding citizens to protect themselves].) And, like Justice
Thomas, they went out of their way to emphasis the laws requiring background checks
and prohibiting felons from possessing firearms were not in jeopardy due to anything that
was said in Bruen, Heller or McDonald. (Id. at p. 2162 (Kavanaugh, J., concurring,
joined by Roberts, C.J.) and p. 2189 (Breyer, J., dissenting, joined by Sotomayor, J. and
Kagan, J.).)
Therefore, it is hardly surprising that in the wake of the Bruen decision,
courts have widely rejected challenges to such laws. Indeed, “over 100 district courts
have held the federal law prohibiting felons from possessing firearms remains valid even
after Bruen. [Citations.]” (United States v. Robinson-Davis (W.D. Va. 2023) 2023 U.S.
Dist. LEXIS 42634, p. *6; see also United States v. Jackson (8th Cir. 2023) 69 F.4th 495[holding similarly]; but see Range v. AG United States (3rd. Cir. 2023) 69 F.4th 96 [as
applied to a defendant who had previously been convicted of making false statements to
obtain food stamps, the federal firearms prohibition on felony offenders violated the
Second Amendment].)
The exact gun and ammunition laws appellant was convicted of violating
have also withstood constitutional challenge post-Bruen. Recently, in People v.
Alexander (2023) 91 Cal.App.5th 469 (Alexander), our colleagues in Division Two of the
Fourth Appellate District ruled, “Heller and Bruen both held that the Second Amendment
protects the individual right of ‘“law-abiding, responsible citizens”’ to possess firearms.
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[Citations.] Convicted felons, by definition, are not law-abiding. Felons thus are not
among ‘the people’ who have an individual right to possess firearms under the Second
Amendment. [Citation.]” (Id. at p. 479.) Therefore, sections 29800 and 30305 do not
violate the Second Amendment. (Ibid.)
Appellant disagrees. He points out that in Heller, the Supreme Court stated
the term “the people” in the Second Amendment “unambiguously refers to all members
of the political community, not an unspecified subset.” (Heller, supra, 554 U.S. at p.
580.) However, in so doing, the court was drawing a distinction between the broader
national community and militia members. (Id. at pp. 580-581.) The court was not
defining the scope of the Second Amendment, which it repeatedly described in both
Heller and Bruen as extending only to law-abiding citizens. “We cannot ignore the
[c]ourt’s guidance” on this threshold issue. (Alexander, supra, 91 Cal.App.5th at p. 480;
accord, People v. Odell (2023) 92 Cal.App.5th 307, 316-317 [because convicted felons
are not law-abiding citizens, they fall outside the ambit of the Second Amendment].)
Appellant points out that some federal judges have penned dissents arguing
for a broader interpretation of the Second Amendment (see, e.g., Kanter v. Barr (7th Cir.
2019) 919 F.3d 437, 453 (Barrett, J., dissenting) [neither felons nor the mentally ill
should be categorically excluded from the scope of the Second Amendment]; Folajtar v.
Attorney General of the United States (3d Cir. 2020) 980 F.3d 897, 912 (Bibas, J.,
dissenting) [the right to bear arms should extend to nondangerous felons].) However,
dissenting opinions are not the law. (People v. Lopez (2012) 55 Cal.4th 569, 585.) And
these minority viewpoints are inconsistent with Heller, which “defined the right protected
by the Second Amendment as belonging to ‘law-abiding, responsible citizens’ [citation],
and Bruen[, which] reaffirmed that limitation [citation].” (Alexander, supra, 91
Cal.App.5th at p. 480.)
Appellant argues it does not make sense for felons to lose their
constitutional right to carry guns for self-defense when they retain other constitutional
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rights, such as their rights under the First Amendment. However, “this argument ignores
differences between the rights protected by the First and Second Amendments, as the
exercise of rights under the First Amendment does not put at risk the physical safety of
others.” (United States v. Price (N.D. Ill. 2023) __ F.Supp.3d __, __, 2023 U.S. Dist.
LEXIS 23794, p. *10.) That risk justifies greater restrictions on a felon’s Second
Amendment rights as compared to other constitutional rights. (Ibid.)
For all these reasons, we uphold appellant’s convictions for possessing a
firearm and ammunition as a felon. He has failed to convince us the statutes prohibiting
such conduct are facially unconstitutional as violative of the Second Amendment.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
DELANEY, J.
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