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Parker v. State

California Court of Appeals, Fifth District

November 6, 2013

CLAY PARKER, as Sheriff, etc., et al., Plaintiffs and Respondents,
STATE OF CALIFORNIA, et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Fresno County No. 10CECG02116, Jeffrey Y. Hamilton, Judge.

Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Peter A. Krause and Ross C. Moody, Deputy Attorneys General, for Defendants and Appellants.

Michel & Associates, C.D. Michel, Clinton B. Monfort, and Anna M. Barvir for Plaintiffs and Respondents.

Bruce Colodny; and Stephen P. Halbrook for FFLGuard LLC and Gun Owners of California, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.

Baker, Manock & Jensen, Douglas Blaine Jensen; and Richard E. Gardiner for Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and Respondents.


Gomes, J.

This appeal presents a facial challenge under the void-for-vagueness doctrine to a statutory scheme within the Penal Code[1] regulating the sale, display, and transfer of “handgun ammunition.” The statutes at issue, former sections 12060, 12061 and 12318, defined “handgun ammunition” as ammunition “principally for use” in handguns as opposed to rifles and other firearms. In the proceedings below, respondents challenged the constitutionality of these statutes on grounds that they failed to provide adequate notice of the conduct proscribed and lacked sufficiently definite guidelines to prevent arbitrary or discriminatory enforcement by police.

The trial court agreed with respondents, declaring the challenged statutes constitutionally invalid and issuing a permanent injunction against their enforcement. Appellants contend the statutes are not unconstitutional because it is possible to conceive of circumstances in which the statutory language would not be vague. These issues are addressed in the first part of our opinion. The second part of the opinion pertains to the trial court’s partial denial of a motion to tax costs filed by appellants after the permanent injunction was issued.[2] We affirm the judgment in full.



Statutory Scheme

Former sections 12060, 12061, and 12318 were enacted as part of Assembly Bill No. 962 (2009-2010 Reg. Sess.), known as the Anti-Gang Neighborhood Protection Act of 2009, which implemented a statutory scheme for the transfer and handling of “handgun ammunition.” (Stats. 2009, ch. 628, §§ 1-2, 7.) In 2012, Senate Bill 1080 renumbered and reconfigured provisions of the Penal Code relating to deadly weapons, including the challenged statutes. (Stats. 2010, ch. 711, §§ 4, 6.) In their briefing, the parties refer to the challenged statutes by their original section numbers. We will discuss the current versions of all relevant statutes and refer to repealed provisions as former sections of the Penal Code.

A handgun is any pistol, revolver or firearm capable of being concealed upon the person. (§ 16640, subd. (a).) The terms “pistol, ” “revolver, ” and “firearm capable of being concealed upon the person” are defined in section 16530, which incorporates the language of former section 12001, subdivision (a)(1). (Stats. 2007, ch. 163, § 1.) These terms “apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.” (§ 16530, subd. (a).)

Section 16650 combines the language of former sections 12060, subdivision (b), and 12323, subdivision (a), to provide the definition of “handgun ammunition.” (See Stats. 2009, ch. 628, § 2; Stats. 1995, ch. 263, § 3.) As used in the statutory scheme, “‘handgun ammunition’ means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, notwithstanding that the ammunition may also be used in some rifles.” (§ 16650, subd. (a), italics added.)

The definition of a “handgun ammunition vendor” is set forth in section 16662, which corresponds to former section 12060, subdivision (c). (Stats. 2009, ch. 628, § 2.) A “‘handgun ammunition vendor’ means any person, firm, corporation, dealer, or any other business enterprise that is engaged in the retail sale of any handgun ammunition, or that holds itself out as engaged in the business of selling any handgun ammunition.” (§ 16662.)

These definitional statutes, particularly section 16650, are essential to the proscriptive language of section 30312 (former § 12318) and sections 30345 through 30365 (former § 12061), all of which impose restrictions on the sale, delivery, and transfer of handgun ammunition. Section 30312 states that “the delivery or transfer of ownership of handgun ammunition may only occur in a face-to-face transaction with the deliverer or transferor being provided bona fide evidence of identity from the purchaser or other transferee.” (§ 30312, subd. (a).) Limited exceptions are provided for law enforcement personnel and other qualified individuals. (Id., subd. (b).) A violation of section 30312 is a misdemeanor offense. (Id., subd. (c).)

Sections 30345 through 30365 regulate the activities of handgun ammunition vendors. For example, a vendor must not allow any employee who cannot lawfully possess a firearm to “handle, sell, or deliver handgun ammunition in the course and scope of employment.” (§ 30347.) Handgun ammunition must also remain inaccessible to customers unless they are being assisted by the vendor or a qualified employee. (§ 30350.)

When handgun ammunition is sold or otherwise transferred, the vendor must record multiple categories of information related to the transaction. This process includes obtaining from the buyer or transferee their date of birth, address, telephone number, driver’s license number, signature, and right thumbprint. (§ 30352, subd. (a).) Vendors must maintain handgun ammunition sales transaction records and make them available for inspection in accordance with the provisions of sections 30355, 30357, 30360 and 30362. A violation of section 30352, 30355, 30360, or 30362 is a misdemeanor. (§ 30365, subd. (a).)

Ammunition – Calibers and Cartridges

The parties’ briefing provides a technical overview of ammunition and its usage in different types of firearms. There appears to be a general consensus between both sides as to the following information.

Modern rifles and handguns fire ammunition that consists of three components: a metal casing that holds a bullet, a propellant or powder, and a primer to ignite the powder. The metal casing and its component parts are known as a cartridge. Three terms, in order of specificity, are commonly used to describe the loaded cartridge: ammunition, caliber, and the cartridge’s given name, such as “.357 Magnum” or “.257 Roberts.”

Relying on the Glossary of the Association of Firearm and Toolmark Examiners, the parties agree that “ammunition” means “one or more loaded cartridges consisting of a primed case, propellant, and with one or more projectiles.” The word “caliber” has multiple definitions. When applied to a firearm, it refers to the diameter of the bore of a gun, usually measured in hundredths or thousandths of an inch and typically written as a decimal fraction. (Merriam-Webster’s Collegiate Dict. (11th ed. 2011) p. 174.) When applied to ammunition, it can be defined as “the diameter of a bullet or other projectile” (Ibid) or “[a] numerical term, without the decimal point, included in a cartridge name to indicate the nominal bullet diameter.” (Glossary of the Assn. of Firearm and Toolmark Examiners (2d ed. 1985) p. 32.) There are many different cartridges within a given caliber of ammunition.


In June 2010, the Sheriff for the County of Tehama, Herb Bauer Sporting Goods, Inc., the California Rifle and Pistol Association Foundation, Able’s Sporting, Inc., RTG Sporting Collectibles, LLC, and Stephen Stonecipher (collectively respondents) filed a complaint for declaratory and injunctive relief which alleged, in pertinent part, that former sections 12060, 12061 and 12318 were void for vagueness under the due process clause of the Fourteenth Amendment.[3] The complaint was answered by the State of California, the Attorney General for the State of California, and the California Department of Justice (collectively appellants).

Respondents claimed that because virtually all calibers of ammunition can be used safely in both rifles and handguns, the challenged statutes failed to provide any standard whereby a person of ordinary intelligence could understand and determine whether a given caliber of ammunition is “principally for use” in handguns. As such, law enforcement officials would have discretion to subjectively interpret and apply the law, i.e., the ability to decide for themselves which calibers of ammunition qualify as “handgun ammunition.” Appellants admitted in their Answer that some calibers can be used in both rifles and pistols, but generally denied there was any confusion surrounding which calibers are “principally for use” in handguns or that the statutes conferred unbridled discretion upon law enforcement officers.

Respondents propounded a special interrogatory to appellants asking for a list of the types of ammunition they considered to be “handgun ammunition” under the statutory scheme. Appellants objected to the word “types” as being vague and ambiguous, but identified 11 different calibers. As discovery progressed, respondents’ expert opined that ammunition is more accurately distinguished by cartridge type, rather than by caliber, because within each caliber there is “a wide range of cartridge lengths, bullet weights, velocity, power, applications and true bullet diameters.” Appellants’ expert later identified 16 cartridges as being “handgun ammunition” within the meaning of the challenged statutes.

In December 2010, respondents filed a motion for summary judgment and alternatively moved for summary adjudication of the separate causes of action in the complaint. The parties agreed to an expedited briefing schedule in order to allow the motion to be heard before the challenged statutes took effect in February 2011.

Motion for Summary Judgment/Summary Adjudication

Respondents’ Evidence

Respondents moved for summary adjudication of the first cause of action on grounds that the challenged statutes were unconstitutionally vague for failure to sufficiently define “handgun ammunition, ” i.e., the concept of ammunition that is “principally for use” in handguns as opposed to other types of firearms. The motion was supported by the following evidence:

1. The legislative history of Senate Bill No. 1276 (1993-1994 Reg. Sess.), a failed measure introduced in 1994 to amend and add Penal Code sections relating to ammunition. Respondents highlighted the following comments from the Bill Analysis conducted by the Senate Committee on the Judiciary regarding the “principally for use” language that now appears in section 16650: “It may be assumed that many ammunition calibers are suitable for both rifles and handguns. Without additional statutory guidance, it may be very difficult for dealers to determine which ammunition is ‘handgun ammunition’….”

2. Hundreds of pages of reference material pertaining to firearms and ammunition, including excerpts from “Cartridges of the World, ” a guide to over 1, 500 firearm cartridges.

3. Appellants’ discovery responses containing the list of 11 calibers of ammunition they considered to be “handgun ammunition.” The calibers identified were as follows: “.45, 9mm, 10mm, .40, .357, .38, .44, .380, .454, .25, [and].32.”

4. Transcript excerpts from the deposition of appellants’ firearms and ammunition expert, Blake Graham, who verified discovery responses containing the aforementioned list of 11 calibers in his capacity as Special Agent Supervisor for the California Department of Justice, Bureau of Firearms.

5. The declaration of respondents’ firearms and ammunition expert, Stephen Helsley, the former Chief of the California Department of Justice (DOJ) Bureau of Forensic Services and former Assistant Director of the DOJ Investigation and Enforcement Branch. Mr. Helsley attested that virtually all modern ammunition can be used interchangeably in a rifle or a handgun, and whether a given cartridge is used in one or the other is ultimately determined by the “needs and desires of the end user.” He further declared: “There is no generally accepted definition of ‘handgun ammunition, ’ nor any commonly understood delineation between ‘handgun ammunition’ and other ammunition used in the firearms industry, let alone one that allows [a person] to determine whether certain cartridges are ‘principally for use’ in handguns.”

6. Declarations by executive officers of five out-of-state ammunition vendors who sell to California residents, each of whom declared that they did not know and could not determine what ammunition is “principally for use” in handguns under the challenged statutes.

7. Declarations by Tom Allman, the Sheriff-Coroner for the County of Mendocino, and Clay Parker, who at the time was the Sheriff for the County of Tehama. Both officials declared that they did not know and were incapable of determining what ammunition is “principally for use” in handguns, and therefore could not equitably enforce the challenged provisions of the statutory scheme.

8. The declaration of respondent Steven Stonecipher, a Fresno County resident who had transferred and received ammunition by mail within California. Mr. Stonecipher declared that he did not know how to interpret the challenged statutes, nor was he aware “of any source from which [he] could determine what ammunition suitable for use in both rifles and handguns is principally for use in a handgun.”

9. The declaration of Barry Bauer, president of Herb Bauer Sporting Goods, Inc., a vendor in Fresno County that sells hundreds of distinct ammunition cartridges that can be used interchangeably between handguns and rifles. Mr. Bauer declared that he did not know and could not determine what ammunition is “principally for use” in handguns within the meaning of the challenged statutes.

Appellants’ Evidence

Appellants submitted the following evidence in support of their opposition to the motion for summary judgment/summary adjudication:

1. Transcript excerpts from the deposition of Barry Bauer wherein he testified that in his personal experience, the following cartridges were used more often in handguns than in rifles:.45 ACP, .45 GAP, [4] 9-millimeter Luger, 10-millimeter Smith & Wesson, .40 Smith & Wesson, .25 ACP, .32 ACP, and.380 ACP.

2. Transcript excerpts from the deposition of respondents’ firearms and ammunition expert, Stephen Helsley, wherein he testified that in his personal experience, .25 ACP cartridges were used more often in handguns than in rifles.[5]

3. Transcript excerpts from the deposition of then Tehama County Sheriff Clay Parker wherein he testified that in his personal experience, .40-caliber ammunition was used more often in handguns than in long guns, as were the following cartridges:.45 ACP, .25 ACP, .32 ACP, .38 Special, .40 caliber, and.380 ACP. Sheriff Parker also testified that he had never visited a gun dealer or ammunition vendor in Tehama County to determine compliance with California’s gun laws. He left such enforcement duties to the California Department of Justice.

4. Transcript excerpts from the deposition of respondent Steven Stonecipher wherein he testified that in his experience, the following cartridges were used more often in handguns:.45 ACP, .380 ACP, 9-millimeter Luger, 10-millimeter Smith & Wesson, .40 Smith & Wesson, .25 ACP, .32 ACP, .357 SIG and.454 Casull.

5. The declaration of the appellants’ firearms expert, Blake Graham, wherein he identified the following 16 cartridges as “handgun ammunition” within the meaning of the challenged statutes:.45 ACP (also known as 45 Auto and 45 Automatic P), .45 GAP, 9-millimeter Luger (also known as 9x19mm, 9mm Parabellum and 9mm Luger ), 10-millimeter Automatic, 40 S&W Automatic, .357 Magnum (also known as 357 Smith & Wesson Magnum), .357 SIG, .38 Special (also known as 38 Special P, 38 Smith & Wesson Special, and.38 Colt Special), .38 Super (also known as 38 Super Automatic and 38 Super Automatic P), .44 Remington Magnum (44 Magnum), .44 Smith & Wesson Special, .44 Auto Mag, .380 ACP (also known as 380 Auto, 9mm Kurz, 9 x 17 mm), .454 Casull, .25 ACP (also known as 25 Auto) and.32 ACP (also known as 32 Auto). According to Mr. Graham, very few long guns fire these particular cartridges. However, he acknowledged there were other cartridges for which he could not determine if they were “principally for use” in handguns without engaging in further research and analysis (e.g., all.22-caliber ammunition). Mr. Graham’s declaration described the methodology he used to compile the list of 16 cartridges: “The starting point for my analysis was the DOJ’s Dealer Record of Sale and Automated Firearm System databases, which contain information on all handguns purchased or transferred in California each year. Specifically, I asked an analyst to run a report for me from those databases that reflected how many handguns in each particular caliber were sold over the last five years. The report that was generated was used as a starting point to show which handgun calibers have been most common in terms of handgun sales over the past several years. My experience and expertise was then applied to narrow the list of calibers down to those cartridges that are principally used in pistols and revolvers.”

6. In further support of their opposition, appellants requested judicial notice of printouts from websites of certain vendors who market cartridges as “handgun ammunition” and “rifle ammunition.”

Respondents’ objections to the request for judicial notice were overruled by the trial court.

Trial Court’s Ruling

The trial court granted respondents’ motion for summary adjudication of their cause of action for declaratory and injunctive relief, which it characterized as a “facial vagueness challenge.” The term “handgun ammunition” was held to be unconstitutionally vague as used within former sections 12060, 12061, and 12318, thus invalidating the statutory scheme regulating the display, transfer, and sale of such ammunition. A two-part analysis formed the basis for this ruling.

The trial court first sought to determine whether the language of the challenged statutes was sufficiently definite to provide adequate notice of the conduct it proscribed. After examining relevant case law, available legislative history, and the text of the provisions in question, the court found the Legislature’s definition provided “no objective way or method” for an ordinary citizen or ammunition vendor to determine whether a given caliber or cartridge is used more often in handguns than in rifles or other firearms. “Consequently, [former sections] 12060, 12061 and 12318 fail[ed] to meet the first requirement for a constitutionally valid criminal statute – that the statute be definite enough so that ordinary people can understand what conduct is prohibited.”

Next, the court considered whether the statutes contained minimal standards or guidelines to govern law enforcement officers. None were found. In the trial court’s view, the Legislature “simply left it open to the personal judgment call and subjective understanding of each individual law enforcement officer to determine if a particular caliber and/or cartridge of ammunition is ‘handgun ammunition’ under the definition in [the statutory scheme] and to subjectively apply that [definition] to each issue of an ammunition sale or transfer that comes to the attention of that law enforcement officer.”

Pursuant to the summary adjudication ruling, a permanent injunction was entered effective February 2011 barring enforcement of the challenged statutes. Respondents were awarded their costs of suit as the prevailing party. Appellants’ timely appeal followed.


Orders granting summary judgment and summary adjudication are reviewed de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 556.) The same is true for all questions of law. (American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570, 575.) “The interpretation of a statute and the determination of its constitutionality are questions of law.” (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.) Accordingly, we apply the de novo standard of review.


We must answer two questions in this portion of the appeal. First, what is the appropriate standard for analyzing a facial challenge to the constitutionality of a criminal statute in the context of the void-for-vagueness doctrine? Second, are the challenged statutes unconstitutionally vague?

To answer the first question, we examine a number of pivotal United States Supreme Court opinions and attempt to harmonize the holdings of those cases with California law, despite a lack of clarity in both lines of authority. Outside of disputes involving First Amendment rights, and to a lesser extent abortion, facial challenges (as opposed to “as applied” challenges) are often evaluated using a standard articulated in United States v. Salerno (1987) 481 U.S. 739 (Salerno). Under the Salerno standard, the challenger must establish “that no set of circumstances exists under which the [statute] would be valid.” (Salerno, at p. 745.) Appellants contend the Salerno standard governs this case.

The Salerno standard is prevalent in federal court, but not universally controlling. Both the United States and California Supreme Courts have found certain circumstances warrant heightened scrutiny of legislative enactments, and thus a more lenient standard of review. Facial challenges of the latter variety are permitted “[w]hen vagueness permeates the text” of a criminal statute that contains no scienter requirement and implicates constitutionally protected activity. (City of Chicago v. Morales (1999) 527 U.S. 41, 55 (plur. opn. of Stevens, J.) (Morales); see also, Kolender v. Lawson (1983) 461 U.S. 352, 358, fn. 8 (Kolender).) California’s version of the alternative standard asks whether a statute is constitutionally invalid “in the generality or great majority of cases.” (San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 673 (San Remo), italics in original.)

We do not believe the California Supreme Court has ever endorsed the Salerno standard, nor are we entirely convinced that Salerno cannot be reconciled with the heightened scrutiny traditionally applied to criminal statutes under the void-for-vagueness doctrine insofar as an inherently vague statute will render the law unconstitutional in all circumstances. In any event, we reject appellants’ argument that the challenged statutes are valid so long as we can conceive of at least one scenario in which the “principally for use” language would not be vague. Under this interpretation of the Salerno standard, the existence of a single cartridge (out of hundreds or thousands) that is used more often in handguns than in rifles would allow these criminal statutes to pass constitutional muster even if vagueness “permeates the text” of their provisions and leaves citizens of ordinary intelligence without fair notice of the conduct proscribed. If the Salerno standardactuallycompels such a result, it surely conflicts with the basic requirements of due process in this instance. Therefore, we apply the principles outlined by the United States Supreme Court in opinions such as Kolender and Morales, discussed infra, and apply California’s more lenient standard to determine whether the statutes are vague “in the generality or great majority of cases.”

As to the second question, our analysis follows traditional rules of statutory interpretation and the two-pronged test for vagueness that was utilized by the trial court. We ultimately conclude the statutes lack the degree of certainty required by constitutional guarantees of due process.

Facial vs. “As Applied” Challenges

“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) The relief typically sought is total invalidation of the law. Therefore, cases hold that the challenger must demonstrate “a present total and fatal conflict with applicable constitutional prohibitions.” (Ibid., citations and internal quotations marks omitted.)

In contrast, an “as applied” challenge “involves an otherwise facially valid measure that has been applied in a constitutionally impermissible manner.” (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 277 (conc. & dis. opn. of Cantil-Sakauye, C.J.) (Matosantos).) This type of challenge “contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right.” (Tobe, supra, 9 Cal.4th at p. 1084.)

Appellants note that facial challenges to legislation are disfavored. The United States Supreme Court has identified several policy considerations in this regard. “Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 450-451, internal citations and quotation marks omitted.)

While these principles apply to facial challenges in general, competing policy concerns must be taken into account when an attack is made under the void-for-vagueness doctrine. If a statute is objectively vague such that it cannot be understood by ordinary citizens for whom it poses a threat of criminal liability, questions of constitutional due process are neither speculative nor premature. This explains why the high court has been willing to resolve facial challenges for at least the better part of a century, albeit on a limited basis. (See, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 (Lanzett ...

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