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The People v. Carl Wayne Ellison

June 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARL WAYNE ELLISON, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Harry A. Staley, Judge. (Super.Ct.No. RIF148312)

The opinion of the court was delivered by: Ramirez P.J.

CERTIFIED FOR PUBLICATION

OPINION

(Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Following a jury trial, defendant was convicted of unlawfully carrying a concealable firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)), but acquitted of three other charges. On appeal, defendant challenges his conviction on the grounds that (1) Penal Code section 12025, subdivision (a)(1), infringes on his right to bear arms, as guaranteed by the Second Amendment of the federal Constitution, and (2) his conviction was the result of prosecutorial misconduct during summation to the jury. We affirm.

BACKGROUND

Because defendant was acquitted of the counts relating to the incident leading up to his detention and arrest for carrying a concealed firearm in a vehicle, we will not recount all of the facts relating to those counts.

On January 20, 2009, Deputy Cox was dispatched to an address in Corona based on a report that an ex-roommate, who had made threats earlier, was parked in his vehicle outside the reporting party's residence, and that a firearm was involved. The deputy and her partner approached the vehicle, a small pickup truck, from behind, and found defendant asleep in the driver's seat in the cab of the truck.

Deputy Cox knocked on the window, and instructed defendant to show his hands. The deputy asked defendant if he had a gun, and defendant replied in the affirmative, reaching toward the floorboard. The deputy instructed defendant not to reach down and to show his hands; then she removed him from the vehicle. Under the floor mat on the driver's side of the cab of the truck, the deputy found a small, loaded Beretta .25-caliber semi-automatic handgun. Defendant was placed in a patrol car.

After detaining defendant in the patrol car, the deputy interviewed Eric H., the reporting party and defendant's former roommate, who was very nervous. Eric described threats made by defendant. The deputy then interviewed Cesar S., who also reported threats made by defendant. Defendant was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 1) and criminal threats (Pen. Code, § 422, count 2), respecting Cesar S. As to each count, it was further alleged that defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)), and as to count 2, it was further alleged the crime was a hate crime. (Pen. Code, § 422.75, subd. (a).) The information also alleged that defendant unlawfully carried a concealed firearm that was loaded (Pen. Code, § 12025, subd. (b)(6), count 3), and criminal threats as to Eric H. (Pen. Code, § 422, count 4.)

Following a trial by jury, defendant was acquitted of counts 1, 2, and 4, and found guilty of count 3. The jury made a true finding that defendant was not listed as the registered owner of the firearm*fn1 and that it was loaded within the meaning of Penal Code section 12031, subdivision (g). He was placed on informal probation for two years and timely appealed.

DISCUSSION

a. Penal Code Section 12025, Subdivision (a)(1), Is Constitutional.

Defendant challenges his conviction for carrying a concealed weapon within a vehicle, on the ground that the statute is unconstitutionally overbroad, infringing on his constitutional right to bear arms under the Second Amendment of the United States Constitution, because it makes no provision for an individual's right to self-defense. We conclude that the conviction of possession of a concealed weapon within a vehicle does not contravene defendant's Second Amendment rights, as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 [128 S.Ct. 2783, 171 L.Ed.2d 637] (Heller).*fn2

Amendment II of the United States Constitution states, "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.) The Second Amendment protects an individual right to possess and carry weapons in case of confrontation. (Heller, supra, 554 U.S. at pp. 592, 595.) The Second Amendment is fully applicable to the states by the Due Process Clause of the ...


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