California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County No. SCD225392, Robert F. O'Neill, Judge.
Law Offices of Elliott N. Kanter and Elliott N. Kanter for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
William Zondorak was convicted of violating California's Assault Weapons Control Act (AWCA) because he possessed an AK series rifle. He argues on appeal that, under District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), California's ban on possession of this weapon violates his right to keep and bear arms under the Second Amendment to the United States Constitution. Although other courts have rejected this expansive reading of Heller as precluding a state from banning assault weapons, and he cites no case applying Heller's principles to invalidate a state's ban on semi-automatic assault weapons, Zondorak asserts that we should construe Heller to bar California from criminalizing his possession of a semi-automatic AK series rifle. We conclude the ban on specified semi-automatic assault weapons under the AWCA does not transgress the Second Amendment, and affirm Zondorak's conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Zondorak was charged by information of possession of an assault weapon in violation of former Penal Code section 12280, subdivision (b) (section 12280). The parties stipulated that Zondorak "knowingly possessed an operable semi-automatic CN Romarm AK series rifle" and he waived jury trial. The court found him guilty of the charged offense and, after his motion to dismiss the information was denied, the court sentenced Zondorak to two days' incarceration already served.
On appeal, Zondorak does not contest he knowingly possessed an operable semi-automatic AK series rifle, or that the rifle is within the ban of the AWCA. Instead, he asserts the trial court erred when it denied his motion to dismiss because he argues section 12280 is unconstitutional as an infringement on his rights under the Second Amendment to the United States Constitution.
The issue presented is whether section 12280's ban on the possession of an AK series semi-automatic rifle by a private citizen in his home is unconstitutional under the Second Amendment to the United States Constitution, which provides: "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." The trial court rejected this argument, and we agree.
A. Relevant Legal Precedents
In Heller, supra, 554 U.S. 570, the United States Supreme Court construed the Second Amendment to confer on individuals the right to keep and bear arms, and a ban on handgun possession in the home violated that right. (Heller, at pp. 595, 635.) In McDonald v. City of Chicago (2010) 130 S.Ct. 3020, 3026, the United States Supreme Court held the rights preserved by the Second Amendment are fully applicable to the states, but did not alter Heller's framework for evaluating the scope of those rights. (SeeU.S. v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 88, fn. 3 (Marzzarella).) Heller was careful to point out that, like the First Amendment's right to freedom of speech, the Second Amendment's right to bear arms is not unlimited (Heller, at p. 595) and its protections do not extend to any type of weapon. Heller cited with approval its previous decision in U.S. v. Miller (1939) 307 U.S. 174 (Miller), in which the Supreme Court held the Second Amendment did not protect an individual's right to transport an unregistered short-barreled shotgun in interstate commerce (Heller, at pp. 621-623), explaining "the type of weapon at issue [in Miller] was not eligible for Second Amendment protection: 'In the absence of any evidence tending to show that [the] possession or use of a ...