Opinion
Page 1249b
227 Cal.App.4th 1249b __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. KENNETH WESLEY BROWN, Defendant and Appellant. C066262 California Court of Appeals, Third District, Sacramento July 21, 2014THE COURT:
It is ordered that the opinion filed herein on June 25, 2014, 227 Cal.App.4th 451; ___ Cal.Rptr.3d ___, be modified as follows and the petition for hearing is DENIED:
1. On page 12 [227 Cal.App.4th 462, advance report, 4th par., line 1], the first sentence of the second paragraph should read:
This court in James noted what weapons are protected under Heller.
2. On pages 17-18 [227 Cal.App.4th 466, advance report, 2d par., line 1], the paragraph beginning “Second, the federal registration” should be modified to read:
Second, the federal registration requirement for short-barreled shotguns and other listed weapons is designed to eliminate criminal use of these inherently dangerous weapons. “The registration requirement reflects Congress’s determination that certain weapons are almost certain to be used for unlawful purposes: ‘The primary reason that unregistered possession of these particular weapons is a crime is the virtual inevitability that such possession will result in violence.’ ” (United States v. Serna (9th Cir. 2006) 435 F.3d 1046, 1048.) In rejecting a defendant’s argument that because a short-barreled shotgun may be legally possessed in Wisconsin and under federal law, its mere possession does not constitute a “crime of violence” for purposes of United States Sentencing Guidelines (USSG), the Seventh Circuit said, “While it is true that federal law provides for the legal registration of sawed-off shotguns [citation], [the defendant’s] reliance on [s]ection 5861 actually cuts against his argument. Under [s]ection 5861(d) ‘only those firearms must be registered that Congress has found to be inherently dangerous and generally lacking usefulness, except for violent and criminal purposes, such as sawed-off shotguns and hand-grenades.’ [Citation.] Thus, ‘the primary reason that unregistered possession of these particular weapons is a crime is the virtual inevitability that such possession will result in violence.’ [Citations.]... [M]ost firearms do not have to be registered -- only those that Congress found
Page 1249c
to be inherently dangerous.” (United States v. Brazeau (7th Cir. 2001) 237 F.3d 842, 845 (Brazeau).) Thus, defendant’s reliance on the ability to register shortened shotguns in some states cuts against his argument here. To be law-abiding under federal law and state law allowing the possession of weapons like defendant’s, citizens in those jurisdictions must register their weapons because of their inherent dangerousness and use by criminals. Indeed, as part of the process, a person seeking to register a short-barreled shotgun must provide a certificate from a state or local law enforcement official certifying the official has no information indicating that the person will use the firearm for other than lawful purposes. (27 C.F.R. § 479.85 (2014); see fn. 7, ante.)
In Brazeau, the Seventh Circuit held that possession of a sawed-off shotgun was a "crime of violence" under the USSG definition. (18 U.S.C. Appen. § 4B1.2; Brazeau, supra, 237 F.3d at p. 844.) In a petition for rehearing, defendant points out that in U.S. v. Miller (7th Cir. 2013) 721 F.3d 435, the Seventh Circuit, interpreting nearly identical statutory language in the Armed Career Criminal Act of 1984 (18 U.S.C. § 924. subd. (e)(1) (ACCA), held that possession of a short-barreled shotgun is not a "crime of violence" under the ACCA. (U.S. v. Miller, supra, at p. 437.) Defendant misses the point. Neither the USSG nor ACCA definition of "crime of violence" is at issue here. The point in our reference to a limited portion of the discussion in Brazeau is that Congress has allowed the possession of certain inherently dangerous weapons to be legal under federal law only if registered. The Congressional findings on the inherent dangerousness of short-barreled shotguns discussed in Brazeau are not disputed in Miller. To the contrary, the Miller court acknowledged, ". . . Congress quite rightly found that such weapons serve no legitimate purpose." (Id. at p. 442.) The court also acknowledged the well-recognized characteristics of short-barreled shotguns—"enhanced ability to conceal and wide spread of shot" (U.S. v. Miller, at pp. 440, 442)—facts the court noted spurred Congress to require registration. (Id. at p. 442.) And the court expressly stated it did not disagree with the observation in another case about the short-barreled shotgun's "ability to enable violence and that possession of such a weapon makes it more likely that the offender will later use it." (Id. at p. 443.) Accordingly, we deny defendant's petition for rehearing.
There is no change in judgment.
Defendant’s petition for rehearing is denied.