Opinion
E076497
03-11-2022
ERIC C. LANE, Plaintiff and Appellant, v. COLTON POLICE DEPARTMENT, Defendant and Respondent.
Eric C. Lane, in pro. per., for Plaintiff and Appellant. Best Best & Krieger, Carlos L. Campos, Denise Hansen, and Gregg W. Kettles, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. PROPS1700180. Michelle H. Gilleece, Judge. Affirmed.
Eric C. Lane, in pro. per., for Plaintiff and Appellant.
Best Best & Krieger, Carlos L. Campos, Denise Hansen, and Gregg W. Kettles, for Defendant and Respondent.
OPINION
MENETREZ J.
Eric and Brian Lane initiated this probate action in 2017 after the death of their father, Patrick Lane. Patrick created a living trust to hold his property and transfer it to the trust beneficiaries upon his death. He owned two assault weapons that were surrendered to the Colton Police Department (the Department) sometime after his death. The trial court issued an order to the Department to show cause why the assault weapons should not be released to the trust beneficiaries, including Eric. After briefing and argument from the parties, the court ruled that the Department was not required to release the assault weapons. Eric appeals, arguing that the court erred by failing to order the release of the weapons. We affirm.
Because of their shared last name, we refer to members of the Lane family by their first names. No disrespect is intended.
BACKGROUND
Patrick owned two firearms that are considered assault weapons under California law-a nine-millimeter Intratec TEC-9 and a nine-millimeter SWD Incorporated M-11. (Pen. Code, § 30510, subd. (b)(3)(B), (4) [defining assault weapons by name]; unlabeled statutory citations refer to this code.) He purchased the Intratec TEC-9 in March 1988 and the SWD Incorporated M-11 in May 1989.
Patrick created The Patrick C. Lane Living Trust approximately 10 days before his death in January 2017. The trust instrument named Patrick as settlor and trustee and Patrick's fiancée, Cindy Lyn Jones, as successor trustee. The instrument named Patrick's sister, Cindy Lane, as first successor trustee. Jones was also the beneficiary of the trust. If she failed to survive Patrick, then the trust property would pass in equal shares to Eric, Brian, and a third person, Dedrich Callahan, Jr.
In February 2017, Eric and Brian filed a petition contesting the validity of the trust. The petition alleged that Jones and Cindy had procured the trust instrument through fraud, undue influence, and financial elder abuse. In August 2017, at a hearing concerning the petition, Jones told the court that she had surrendered Patrick's assault weapons to the Department "because that's what [she] was instructed to do with them."
In February 2019, Cindy filed an ex parte application for an order to show cause (OSC) why the Department should not release the assault weapons to the beneficiaries of Patrick's trust. According to the application, Cindy, Eric, Brian, and Callahan had attempted to obtain the assault weapons from the Department several times. The trial court issued the requested OSC.
Cindy filed the ex parte application in her capacity as trustee of the trust. The record does not disclose how or when Cindy succeeded Jones as trustee. The ex parte application also sought the release of two other firearms and some firearm accessories. This appeal relates only to the two assault weapons.
The Department's memorandum of points and authorities argued that the assault weapons could not be lawfully possessed. More specifically, the Department argued that the assault weapons could be lawfully possessed only if they had been registered by a certain date. The Department submitted records from the state Bureau of Firearms showing that while Patrick had purchased the assault weapons in 1988 and 1989, he had never registered them as assault weapons. Eric asked the court to order the Department to release the weapons, and he argued that Patrick lawfully possessed the assault weapons as a retired peace officer. The court continued the matter several times, and the parties filed further briefing.
In August 2019, Eric submitted a letter from a licensed gun dealer. The gun dealer stated that it could find a legal buyer for the assault weapons if the Department transferred the weapons to the dealer. The dealer explained that to accomplish the transfer, the Department needed to submit a form to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The court ordered the Department to submit the form (ATF E-Form 5) to the ATF. The court noted that it was not ordering the Department to release the weapons-it merely wanted to know whether the ATF would approve the release and resale of the weapons to an appropriate buyer.
The Department submitted the ATF form for each assault weapon, and the ATF responded by returning the forms "without action." (Capitalization omitted.) The cover letter accompanying the returned forms explained that the transfer of the weapons did not require ATF approval, "but any transfer [was] subject to State law."
The trial court held the final hearing on the OSC in September 2020 and entered its formal order in November 2020. The court determined that the assault weapons could not be lawfully possessed and denied the request to release them to the trust beneficiaries. Eric filed a motion for reconsideration, and the court denied that motion as well. The court ruled that Eric had not identified new facts or circumstances or a change in law warranting reconsideration of the prior order.
DISCUSSION
Eric argues that the court erred by denying the request to release the assault weapons to the trust beneficiaries. We disagree.
The trial court's order involved the interpretation of statutes and the application of statutory standards to undisputed evidence. We review such a ruling de novo. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212; Jackson v. Department of Justice (2001) 85 Cal.App.4th 1334, 1343.)
In 1989, the Legislature enacted the Roberti-Roos Assault Weapons Control Act (AWCA) to place restrictions on the use of assault weapons and "to establish a registration and permit procedure for their lawful sale and possession." (§ 30505, subd. (a); Kasler v. Lockyer (2000) 23 Cal.4th 472, 477 (Kasler).) The AWCA lists certain firearms by name and designates them as assault weapons, including both of the firearms at issue here. (§ 30510, subd. (b)(3)(B), (4).)
In 2010, the Legislature repealed and recodified the AWCA, without substantive change, in a different part of the Penal Code. (Stats. 2010, ch. 711, §§ 4 [repeal], 6 [re-enactment], operative Jan. 1, 2012; see also § 30500.)
The Legislature intended to ban those assault weapons enumerated in the AWCA. (Stats. 1989, ch. 18, § 6; Kasler, supra, 23 Cal.4th at p. 488.) Thus, it is generally a crime to possess an unregistered assault weapon (§ 30605, subd. (a)), but properly registered assault weapons may be possessed under certain conditions. (§§ 30900 [providing for registration of assault weapons], 30945 [allowing possession of registered assault weapons].) If a person lawfully possessed an assault weapon before June 1, 1989, he or she was required to register that weapon by January 1, 1991. (§ 30900, subd. (a)(1); see also In re Jorge M. (2000) 23 Cal.4th 866, 871 [AWCA "requires registration of assault weapons, sets time periods for such registration, [and] prohibits the possession of unregistered assault weapons"].)
Here, the Department presented undisputed evidence that Patrick owned both assault weapons before June 1, 1989. The undisputed evidence also showed that he did not register the assault weapons by January 1, 1991. Indeed, he never registered them. Accordingly, they were not lawful to possess. The court did not err by failing to order the Department to release unlawful assault weapons.
Eric argues that other provisions of the AWCA permit the trust beneficiaries to take possession of the assault weapons. We are not persuaded. The first provision on which Eric relies is section 30630, subdivision (a), which permits "sworn peace officer[s]" to possess or use assault weapons "for law enforcement purposes, whether on or off duty." Eric asserts that Patrick was a sworn peace officer and that he purchased the assault weapons for law enforcement purposes before his retirement in October 1990. Eric states that both parties agreed to those facts, citing the reporter's transcript of a hearing on the OSC. The reporter's transcript shows only that the court believed "everybody is pretty much in agreement with the underlying facts," including that Patrick was a retired correctional officer. There was no stipulation on that issue, and the court's observation was not evidence. Neither party presented evidence that Patrick was a sworn peace officer who purchased the assault weapons for law enforcement purposes before retiring in October 1990. Eric's unsworn statements in his trial court briefing do not constitute evidence. (People v. Kiney (2007) 151 Cal.App.4th 807, 815 ["unsworn testimony in general does not constitute 'evidence' within the meaning of the Evidence Code"].)
In any event, even if Eric had proven those facts, section 30630 would not render Patrick's possession of the assault weapons legal. After Patrick's retirement in October 1990, he was no longer a sworn peace officer using the assault weapons for law enforcement purposes, and the plain language of section 30630 does not exempt retired peace officers. (See 93 Ops.Cal.Atty.Gen. 130 (2010) [2010 Cal. AG LEXIS 20, pp. *13-14] ["Upon retirement from government service, a peace officer becomes a private citizen, to whom the general prohibition on assault weapons becomes applicable"].) The provision of the AWCA requiring Patrick to register the weapons by January 1, 1991, therefore applied. He did not register them before the deadline. Eric argues that federal law establishes that retired peace officers are considered off-duty officers. The section that he cites merely permits retired law enforcement officers to carry concealed firearms. (18 U.S.C. § 926C(a).) It does not establish that retired officers are considered off duty for purposes of the AWCA.
Section 30915 is the second provision on which Eric relies. That section describes what a person may do when he or she obtains title to an assault weapon by bequest or intestate succession. It directs that person to render the weapon inoperable, remove the weapon from the state, sell the weapon to a licensed gun dealer, or obtain a permit for the weapon. (§ 30915, subds. (a)-(d).) But section 30915 applies only if the assault weapon was registered under the AWCA or was lawfully possessed by a sworn peace officer under section 30630. (§ 30915.) Neither of those conditions applies here, so section 30915 does not assist Eric.
Eric also relies on subdivision (b)(1) of section 30630, which permits "the sale, delivery, or transfer of an assault weapon" to a sworn peace officer "if the peace officer is authorized by the officer's employer to possess or receive the assault weapon." The officer must have "verifiable written certification" from the head of the officer's agency, "identifying the recipient or possessor of the assault weapon as a peace officer and authorizing that person to receive or possess the specific assault weapon." (§ 30630, subd. (b)(1).) Eric asserts that one of the trust beneficiaries, Callahan, is an active duty officer who may take possession of the assault weapons under that provision. Eric made the same argument in one of his trial court briefs, but he offered no evidence demonstrating (1) that Callahan is a sworn peace officer or (2) that he had the required written certification from the head of his agency. The court therefore did not err by refusing to order the release of the weapons to Callahan.
Eric further relies on provisions that permit assault weapons to be registered before July 1, 2018, or January 1, 2022. (§ 30900, subds. (b)(1), (c)(1).) He argues that he could have registered the assault weapons before those deadlines if the Department had not withheld the weapons. But neither of those deadlines applies in this case. The Legislature enacted those deadlines when it expanded the definition of an assault weapon in 2016 and 2020. (Stats. 2016, ch. 48, §§ 1, 3; Stats. 2020, ch. 29, §§ 38, 40.) The new deadlines apply to those newly defined assault weapons that were lawfully possessed before the 2016 and 2020 amendments to the AWCA. (§§ 30515, subds. (a)(1), (4), (9)-(11), (b), 30900, subds. (b)(1), (c)(1).) Patrick's weapons were not newly defined as assault weapons by the 2016 or 2020 amendments, so those new deadlines do not apply. (§ 30510, subd. (b)(3)(B), (4) [defining Patrick's weapons as assault weapons]; § 30515, subds. (a)(1), (4), (b) [2016 expansion of the definition of assault weapon]; § 30515, subd. (a)(9)-(11) [2020 expansion of the definition of assault weapon].)
Lastly, Eric argues that the AWCA violates the ex post facto clauses of the state and federal Constitutions. Eric did not raise this argument in the trial court, and it lacks merit. He cites Staples v. United States (1994) 511 U.S. 600 (Staples) to support the argument. That case had nothing to do with the ex post facto clauses. Staples concerned the mens rea requirement for a conviction under the National Firearms Act. (Id. at pp. 602, 619.) Besides Staples, Eric cites only the ex post facto clauses and asserts in a conclusory manner that an ex post facto violation has occurred. His conclusory assertion fails to carry his burden of showing reversible error, and we have no duty to develop his argument for him. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
For all of these reasons, we conclude that the court did not err by denying the request to release the assault weapons to the beneficiaries.
DISPOSITION
The order denying the request to release the assault weapons to the trust beneficiaries is affirmed. The Department shall recover its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAMIREZ P. J., FIELDS J.