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The People v. Rose

California Court of Appeals, First District, Third Division
Aug 8, 2023
No. A165250 (Cal. Ct. App. Aug. 8, 2023)

Opinion

A165250

08-08-2023

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOSHUA MICHAEL ROSE, Defendant and Appellant.


NOT TO BE PUBLISHED

(Mendocino County Super. Ct. No. SCUK-CRCR-2020-35597-1)

PETROU, J.

Defendant and appellant Joshua Michael Rose argues his conviction for carrying a loaded firearm under Penal Code section 25850 is unconstitutional following the United States Supreme Court's decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S. (Bruen). We reject the contention and affirm.

All statutory references are to the Penal Code unless otherwise stated.

Factual and Procedural Background

The parties stipulated to the following facts: "On or about July 2, 2020, in the county of Mendocino, the defendant, Joshua Rose, operated a motor vehicle with a blood alcohol content of 1.20. [¶] At the time that he operated the vehicle, he possessed a firearm, to wit, a .45-caliber handgun, and that weapon was capable of being concealed within the vehicle while Mr. Rose drove."

In January 2021, the District Attorney filed an information charging Rose with carrying a loaded firearm while not the registered owner and while a member of a class of persons prohibited from possessing and acquiring a firearm (§ 25850, subds. (a), (c)(4); count 1); carrying an unregistered, loaded handgun (§ 25850, subds. (a), (c)(6); count 2); possessing a prohibited firearm knowing that he was prohibited from doing so by a temporary restraining order (§ 29825, subd. (b); count 3); and misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (b); count 4). In June 2021, Rose pleaded no contest to the charges in counts 2 and 4. In May 2022, the trial court suspended imposition of sentence and placed Rose on probation for three years. This appeal followed.

While Rose's appeal was pending, the United States Supreme Court decided Bruen, supra, 142 S.Ct. 2111, holding that the "proper cause" requirement of New York State's public carry licensing scheme was unconstitutional. (Id. at p. *2156.)

Discussion

Rose argues that his count 2 conviction for carrying an unregistered, loaded handgun under section 25850, California's public carry statute, must be reversed because Bruen rendered it unconstitutional. We disagree.

I. Applicable Law

The Second Amendment of the United States Constitution provides that "[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., 2nd Amend.)

In California, under section 25850, subdivision (a), "[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 or in any public place or on any public street in a prohibited area of unincorporated territory." (§ 25850, subd. (a).)

Section 25850 does not apply to a person who has received a license to carry a concealed weapon. (§ 26010.) To obtain such a license, one must apply with either the county sheriff (§ 26150) or the chief of police (§ 26155). The sheriff or chief of police "may issue a license to that person upon proof of all of the following: [¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of the license. [¶] (3) The applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business. [¶] (4) The applicant has completed a course of training as described in Section 26165." (§§ 26150, subd. (a), 26155, subd. (a).)

Section 25850 is subject to other statutory exemptions, such as for peace officers (§ 25900), military personnel while on duty (§ 26000), persons using target ranges to practice shooting (§ 26005, subd. (a)), persons carrying a loaded firearm within the person's place of business or the person's private property (§ 26035), lawful hunting (§ 26040), persons carrying a loaded firearm who reasonably believe that "any person or the property of any person is in immediate, grave danger" and "the carrying of the weapon is necessary for the preservation of that person or property" (§ 26045, subd. (a)), and persons under threat from the subject of a restraining order (§ 26045, subd. (b)).

"A defendant challenging the constitutionality of a statute carries a heavy burden: 'The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.'" (People v. Fuiava (2012) 53 Cal.4th 622, 696.) Indeed, "[f]acial challenges to statutes and ordinances are disfavored. Because they often rest on speculation, they may lead to interpreting statutes prematurely, on the basis of a bare-bones record. [Citation.] Also, facial challenges conflict with the fundamental principle of judicial restraint that courts should not decide questions of constitutional law unless it is necessary to do so, nor should they formulate rules broader than required by the facts before them." (Building Industry Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 90.) "In analyzing a facial challenge to the constitutionality of a statute, we consider 'only the text of the measure itself, not its application to the particular circumstances of an individual.' [Citation.] 'On a facial challenge, we will not invalidate a statute unless it "pose[s] a present total and fatal conflict with applicable constitutional prohibitions." '" (People v. Alexander (2023) 91 Cal.App.5th 469, 474 (Alexander).)" 'The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.'" (Ibid.)

II. Standing

The Attorney General contends Rose lacks standing to pursue his claim. We shall assume arguendo that Rose has standing to assert his claim. (See, e.g., In re D.L. (2023) 93 Cal.App.5th 144, 158-161 (D.L.).) Even so, his constitutional challenge fails, as we now explain.

Rose asserts two additional threshold arguments to support our consideration of his appeal. First, Rose argues against the forfeiture of his constitutional claim for having failed to raise it first in the trial court since, in his view, it would have been unreasonable "to have anticipated Bruen's changes to section 25850's constitutionality prior to appellant's placement on probation." The Attorney General does not address or press for forfeiture, and we see no grounds to do so either. (See People v. Turner (1990) 50 Cal.3d 668, 703 [no waiver due to absence of timely objection in trial court "when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change"].) Second, Rose argues that his constitutional claim was cognizable even though he did not obtain a certificate of probable cause pursuant to section 1237.5, which requires such a certificate where the claim raised on appeal challenges the validity of the plea. (See People v. Panizzon (1996) 13 Cal.4th 68, 76.) The Attorney General agrees, as do we, that no certificate was required, as the relevant change in law (Bruen) occurred after his plea.

III. Constitutionality of Section 25850

A. Bruen

In Bruen, supra, 142 S.Ct. 2111, the United States Supreme Court considered the constitutionality of New York's public carry licensing scheme. Under that scheme, to obtain a license to possess a firearm at home or place of business, an applicant "must convince a 'licensing officer' - usually a judge or law enforcement officer - that, among other things, he is of good moral character, has no history of crime or mental illness, and that 'no good cause exists for the denial of the license.'" (Id. at pp. *2122-*2123.) Prior to Bruen, to secure a license to carry a firearm outside of the home or place of business for self-defense purposes, the applicant also needed to establish" 'proper cause,'" which New York courts interpreted as requiring" 'a special need for self-protection distinguishable from that of the general community.'" (Id. at p. *2123.) This was generally established by "evidence 'of particular threats, attacks or other extraordinary danger to personal safety.'" (Ibid.)

The petitioners in Bruen were "law-abiding" New York residents who applied for public carry licenses for general self-defense purposes. (Bruen, supra, 142 S.Ct. at pp. *2124-*2125.) After their applications were denied for failure to satisfy the "proper cause" requirement, they sued for declaratory and injunctive relief, contending state officials violated their Second Amendment rights "by denying their unrestricted-license applications on the basis that they had failed to show 'proper cause,' i.e., had failed to demonstrate a unique need for self-defense." (Bruen, at p. *2125, italics omitted.)

The United States Supreme Court concluded that New York's licensing regime violated the Constitution "[b]ecause the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense." (Bruen, supra, 142 S.Ct. at p. *2122.) The Court applied the following "text-and-history standard": "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.'" (Id. at pp. *2129-*2130, *2138.) The Court determined that "[t]he Second Amendment's plain text . . . presumptively guarantee[d] petitioners . . . a right to 'bear' arms in public for self-defense" and "the historical record . . . [did] not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense" or "any . . . tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (Id. at pp. *2135, *2138.) Therefore, the Court concluded that "New York's proper-cause requirement violate[d] the Fourteenth Amendment in that it prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Id. at p. *2156.)

The Supreme Court noted that, like New York, California, the District of Columbia, and four other states, have" 'may issue' licensing laws," which include "analogues to the 'proper cause'" standard. (Bruen, supra, 142 S.Ct. at pp. *2123-*2124.) Under these" 'may issue'" licensing regimes, Bruen explained that "authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license." (Ibid.) On the other hand, noted the Court, 43 other states "are 'shall issue' jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability." (Id. at p. *2123.)

In a footnote, the court made clear that "nothing in [its] analysis should be interpreted to suggest the unconstitutionality of the 43 States' 'shall-issue' licensing regimes, under which 'a general desire for self-defense is sufficient to obtain a [permit].'" (Bruen, supra, 142 S.Ct. at p. *2138, fn. 9.) The Court explained: "[S]hall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.' [Citation.] And they likewise appear to contain only 'narrow, objective, and definite standards' guiding licensing officials, [citation], rather than requiring the 'appraisal of facts, the exercise of judgment, and the formation of an opinion,' [citation]-features that typify proper-cause standards like New York's." (Ibid.)

In his concurrence, Justice Kavanaugh clarified that "the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense." (Bruen, supra, 142 S.Ct. at p. *2161 (conc. opn. of Kavanaugh, J.).) He added: "Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States." (Id. at p. *2162.)

B. Applying Bruen

Since Bruen was decided, several California courts have considered the constitutionality of various California's statues regulating possession of firearms. (See, e.g., People v. Bocanegra (2023) 90 Cal.App.5th 1236, 12541257 [rejecting argument that conviction under section 30605, which prohibits possession of an assault weapon, must be reversed following Bruen]; People v. Alexander (2023) 91 Cal.App.5th 469, 479 [rejecting argument that section 29800, subdivision (a)(1) and section 30305, subdivision (a)(1), which prohibit felons from possessing firearms and ammunition, are facially invalid under Second Amendment following Bruen]; People v. Odell (2023) 92 Cal.App.5th 307, 316-318 [agreeing with Alexander that felon in possession statute did not violate constitution post-Bruen].)

D.L., supra, 93 Cal.App.5th 144, is particularly instructive. There, our colleagues rejected a claim which, like the one Rose asserts here, challenged the constitutionality of section 25850, subdivision (a). In that case, the juvenile court had found the count in a wardship petition charging the minor with the unlawful possession of a loaded firearm under section 25850, subdivision (a) to be true. (D.L., at p. 149.) The minor sought reversal of his section 25850 conviction based on Bruen. (D.L., at p. 149.)

The court in D.L. noted the Attorney General conceded that Bruen invalidated California's "good cause" requirement to obtain a license to carry a firearm. (D.L., supra, 93 Cal.App.5th at p. 148.) Though the "good cause" requirement was no longer valid, the court agreed with the Attorney General that the minor's constitutional challenge could be defeated because the "good cause" requirement in sections 26150 and 26155 was severable from the balance of California's concealed carry licensing framework. (D.L., at p. 148.) The court analyzed the three criteria for severability-whether a provision is (1) grammatically, (2) functionally, and (3) volitionally separable-and concluded the invalid "good cause" provision of the licensing framework was severable from the public carry licensing framework. (Id. at pp. 148, 163.)

Having established severability, the D.L. court then concluded that the licensing framework remained valid once that provision was excised. (D.L., supra, 93 Cal.App.5th at p. 150.) In reaching this conclusion, the court observed that Bruen's majority holding was "quite limited," restricted to holding only that New York's" 'proper-cause'" licensing requirement was unconstitutional. (D.L., at p. 165.) The court further noted that Bruen "did not undermine regulation of guns based on objective criteria," and quoted language from Bruen which recognized limits to the exercise of an individual's right to armed self-defense. (D.L., at p. 165 [explaining right secured by Second Amendment" 'was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose' "].) The court cited to other recent decisions, including Alexander, supra, 91 Cal.App.5th 469, which had rejected facial challenges to the constitutionality of other states regulating firearm possession post-Bruen. (D.L., at pp. 165166.) Finally, the court explained that "the remaining concealed carry licensing requirements, after severing the 'good cause' condition, [were] consistent with the goals that California has advanced since the founding of our state: ensuring Californians who carry firearms are responsible and lawabiding, live in or have substantial contact with the licensing jurisdiction . . ., and know how to safely handle a gun. (Id. at p. 166.)

For all the above reasons, the D.L. court concluded "section 25850 is enforceable and is not unconstitutional on its face. It does not pose a present total and fatal conflict with applicable constitutional prohibitions." (D.L., supra, 93 Cal.App.5th at p. 167.) We agree with the constitutional analysis in D.L. and adopt it here. Pursuant to that analysis, set forth at length above, we conclude section 25850 is enforceable and not unconstitutional on its face.

Rose observes that like the "good cause" factor, the "good moral character" requirement in California's licensing scheme is also undefined and confers upon local law enforcement "near unbridled discretion to deny licenses." To the extent he suggests that Bruen also rendered unconstitutional the "good moral character" requirement in sections 26150, subdivision (a)(1) and 26155, subdivision (a)(1), we disagree. As noted, Bruen's "actual holding was quite limited" (D.L., supra, 93 Cal.App.5th at p. 165), and held only that New York's "proper-cause" licensing requirement was unconstitutional. (Bruen, supra, 142 S.Ct. at p. *2156.) The New York licensing scheme also had a" 'good moral character'" requirement (see Bruen, 142 S.Ct. at pp. *2123, *2169 [noting New York licensing scheme requires license applicant to show he or she is "of 'good moral character' "]), but that provision was neither challenged by the Bruen plaintiffs nor was its constitutionality ever adjudicated by the Supreme Court. Thus, Bruen does not compel us to sever or otherwise impugn California's "good moral character" licensing requirement, and we decline to expand Bruen's reach to other licensing requirements it did not address.

Rose also argues that even if the "good cause" provision is severed from California's licensing framework, this state's "may issue" licensing scheme is facially unconstitutional because it "continue[s] to authorize the . . . licensing authority to refuse to issue a license to an objectively qualified applicant." Rose disputes that California's scheme reflects the type of" 'narrow, objective, and definite'" standard endorsed by Bruen. According to Rose, because California's "may issue" licensing scheme will continue to allow for the" 'appraisal of facts, the exercise of judgment, and the formation of an opinion'" in determining whether to grant or deny a license, it contravenes Bruen, violates Second Amendment rights, and must still be invalidated.

Again, we decline to expand Bruen's reach in the manner Rose urges. Bruen's holding is based on its analysis of the "proper cause" standard in the challenged New York statute. The majority opinion in Bruen made no mention of, and did not rely upon, permissive "may" language in the New York statute. Indeed, the statute at issue contained no such wording. (See N.Y. Penal Law form § 400.00(2) (2021) ["A license for a pistol or revolver, other than an assault weapon or disguised gun, shall be issued to . . . when proper cause exists for the issuance thereof . . ." (italics added)].) Further, while the Supreme Court stated in footnote 9 that its holding should not be construed to render unconstitutional the various "shall issue" licensing regimes of 43 states (see Bruen, supra, 142 S.Ct. at p. *2138, fn. 9), it never stated that its holding should be construed to invalidate the "may issue" licensing schemes in their entirety (see ibid.).

Notably, at least two of the" 'shall issue'" licensing regimes identified by the Supreme Court (Connecticut and Delaware) utilize the permissive" 'may'" language in their statutes. (See Conn. Gen. Stat. § 29-28(b) (2021) and Del. Code, tit. 11, § 1441 (2022).).

Rose also disputes the Attorney General's reliance on Justice Kavanaugh's concurrence for his view that California's licensing regime remains valid. To support the contention that Bruen still allowed for the reasonable regulations on firearm possession without violating the Second Amendment, the Attorney General had cited Justice Kavanaugh's comment that Bruen "does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.'" (Bruen, supra, 142 S.Ct. at p. *2161 (conc. opn. of Kavanaugh, J.).) Rose contends that Justice Kavanaugh's declaration only applied to "shall issue" licensing regimes and not, as the Attorney General implies, "may issue" licensing regimes such as California. He further posits that Justice Kavanaugh viewed "may issue" licensing schemes as" 'constitutionally problematic'" because they granted" 'open-ended discretion'" to licensing officials." Since Justice Kavanaugh's concurrence does not constitute binding precedent (Maryland v. Wilson (1997) 519 U.S. 408, 412-413), it does not invalidate licensing regimes that use "may issue" language, especially as the use of such permissive language was not the basis for the Bruen majority's narrow conclusion that the New York licensing scheme's good-cause requirement was invalid.

Disposition

The judgment is affirmed.

WE CONCUR: TUCHER, P.J., FUJISAKI, J.


Summaries of

The People v. Rose

California Court of Appeals, First District, Third Division
Aug 8, 2023
No. A165250 (Cal. Ct. App. Aug. 8, 2023)
Case details for

The People v. Rose

Case Details

Full title:THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOSHUA…

Court:California Court of Appeals, First District, Third Division

Date published: Aug 8, 2023

Citations

No. A165250 (Cal. Ct. App. Aug. 8, 2023)