IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CARL EDWARD MEYER, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F00924)
The opinion of the court was delivered by: Mauro, J.
P. v. Meyer
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Carl Edward Meyer, Jr., pleaded no contest to transporting or importing an assault weapon in violation of Penal Code section 12280, subdivision (a)(1), which is part of the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 67) (the Act). Defendant contends on appeal that Penal Code section 12280, subdivision (a)(1) violates the Second Amendment to the United States Constitution, and that it also violates his right to equal protection under the United States and California Constitutions.
We conclude that transporting or importing assault weapons into California is not protected by the Second Amendment, and that defendant is prohibited from asserting an equal protection challenge on appeal because he failed to request or obtain a certificate of probable cause on that issue. We will affirm the judgment.
According to his briefing, defendant came to California from Nevada to attend McGeorge School of Law in Sacramento. He conceded in the trial court that he brought an AK-47 assault weapon with him.
The Sacramento County District Attorney filed a criminal complaint against defendant, alleging in count one that defendant committed a felony violation of Penal Code section 12280, subdivision (a)(1), transporting or importing into California an AK-47 assault weapon.*fn1 Counts two through four alleged additional violations of section 12280, subdivision (a)(1) regarding other assault weapons, and count five alleged a violation of section 12020, subdivision (a)(3), unlawfully carrying and concealing upon his person 13 large capacity magazines.
Defendant pleaded no contest to count one with the understanding that no immediate state prison time would be imposed. The trial court placed defendant on probation for four years with 180 days in county jail, and dismissed the remaining counts.
Defendant contends that section 12280, subdivision (a)(1) violates the Second Amendment. "One who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation." (People v. Black (1941) 45 Cal.App.2d 87, 96.) "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.) The party attacking the constitutionality of a statute bears the burden of demonstrating its invalidity. (People v. Ramirez (1997) 55 Cal.App.4th 47, 54.)
Section 12280, subdivision (a)(1) provides: "Any person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon or any .50 BMG rifle, except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years." (§ 12280, subd. (a)(1).) There is no dispute that defendant's AK-47 was an "assault weapon." (See § 12276, subd. (a)(1); see also § 12276, subd. (e).) Although section 12280, subdivision (a)(1) proscribes various activities involving assault weapons, the focus in this case is on transporting or importing an assault weapon.
In District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637] (Heller), the United States Supreme Court concluded that the Second Amendment confers an individual right, as opposed to a collective right, to keep and bear arms for the purpose of self-defense. Heller further concluded that this individual right "is not unlimited" in scope. (Heller, supra, 554 U.S. at p. 626 [171 L.Ed.2d at p. 678].) The right is limited to those weapons "'in common use at the time,'" a limitation "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.' [Citations.]" (Id. at p. 627 [171 L.Ed.2d at p. 678].) Heller observed that the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (Id. at p. 625 [171 L.Ed.2d at p. 677].)
This court previously decided a Second Amendment challenge to section 12280, subdivisions (b) and (c), which criminalizes the possession of assault weapons and .50-caliber BMG rifles.*fn2 (People v. James (2009) 174 Cal.App.4th 662 (James), cert. den. (2010) [176 L.Ed.2d 124].) This court assumed that the Second Amendment applied to the states and concluded that the Second Amendment "does not protect the right to possess assault weapons or .50-caliber BMG rifles." (James, supra, 174 Cal.App.4th at p. 676.)
More recently, the United States Supreme Court issued its decision in McDonald v. Chicago (2010) 561 U.S. __, [177 L.Ed.2d 894] (McDonald). The Supreme Court held that the individual right conferred by the Second Amendment is fully applicable to the states, calling that right "fundamental." (McDonald, supra, 561 U.S. at p. ___ [177 L.Ed.2d at p. 921].) But the court did not otherwise expand or contract the substantive scope of the Second Amendment right Heller recognized. (See United States v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 88, fn. 3 (Marzzarella).)
Defendant argues that because the Second Amendment applies to the states and confers a "fundamental" right, section 12280, subdivision (a)(1) violates the Second Amendment under a strict scrutiny analysis. Alternatively, he argues that the law would even fail to survive intermediate scrutiny.
We do not need to determine the appropriate level of scrutiny, however, because transporting or importing assault weapons is not protected by the Second Amendment. In James, this court concluded that possession of assault weapons was unprotected under the Second Amendment. (James, supra, 174 Cal.App.4th at p. 676.) It follows that if possession is unprotected, transportation and importation of an assault weapon is also unprotected. In fact, transportation and importation of an assault weapon is further removed from the "inherent right of self-defense" that is "central" to the Second Amendment right Heller endorsed. (Heller, supra, 554 U.S. at p. 628 [171 L.Ed.2d at p. 679].)
Because transportation and importation of an assault weapon is unprotected under the Second Amendment, defendant's Second Amendment challenge fails. We need not subject section 12280, subdivision (a)(1) to strict or intermediate scrutiny, because such scrutiny is applied only when a law impinges upon a party's constitutional right. (Marzzarella, supra, 614 F.3d at p. 89 ["First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. [Citation.] If it does not, our inquiry is complete"]; Ileto v. Glock, Inc. (9th Cir. 2009) 565 F.3d 1126, 1147 (conc. & dis. opn. of Berzon, J.) ["If Plaintiffs' interest were wholly unprotected, no scrutiny, rational basis or otherwise, would be required"].) Because defendant had no right under the Second Amendment to transport or import an assault weapon into California, the constitutional inquiry ends.
In his reply brief, defendant states that "[i]f this court is disinclined to revisit its holding in James[,supra, 174 Cal.App.4th 622], [defendant] requests this court find his claims forfeited and remand the matter for him to withdraw his plea." In other words, defendant's position is that we should revisit James, decline to follow it and rule in defendant's favor; however, if we believe James remains valid (which we do), then defendant requests that we refrain from reaching the merits of his Second Amendment challenge, deem his argument forfeited, and remand the case to allow him to withdraw his plea.
Having sought appellate review and pressed his Second Amendment challenge on appeal, defendant cannot prevent an adverse determination by requesting forfeiture in the event his challenge proves fruitless. Moreover, defendant fails to support his request with any argument or citation to authority. (See People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10 [declining to consider cursory contention that was unsupported by developed argument or citation to relevant authority].) For these reasons, we reject defendant's request.
Defendant also argues that the Act violates his equal protection rights under the United States and California Constitutions. But defendant did not request or obtain a certificate of probable cause on equal protection grounds. Because defendant pleaded no contest, his failure to obtain a certificate of probable cause on the equal protection issue prevents him from raising the issue on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1094-1097.)
The judgment is affirmed.
We concur: HULL, Acting P. J. BUTZ, J.