Opinion
H035784 Super. Ct. No. CC895489
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER BURGOS ARIZMENDI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Alexander Burgos Arizmendi of possession of an assault weapon (count 1) and criminal threats (count 2) in a San Jose case and of possession of an assault weapon (count 4), negligent discharge of a firearm (count 5), and being under the influence of a controlled substance (count 3) in a Mountain View case. It also found true allegations that defendant personally used an assault weapon in committing counts 2 and 5 for purposes of a five-, six-, or 10-year sentence enhancement. The trial court sentenced defendant to 11 years and four months in prison. On appeal, defendant contends that (1) the trial court erroneously denied his motion to suppress evidence of the assault weapon in the San Jose case, (2) the trial court transgressed his constitutional right to due process by consolidating the San Jose case with the Mountain View case, and (3) the convictions for possession of an assault weapon transgress his constitutional right to bear arms. We disagree and affirm the judgment.
SAN JOSE CASE
On January 28, 2008, at 10:00 p.m., Jesus Rodriguez and George Bracamonte were leaving Bracamonte's home at 544 North 16th Street (544) when they heard someone yell from 556 North 16th Street (556), a residence that was one or two houses and 40 to 50 feet away on the same side of the street as 544. They then saw that person pull a lever of what looked like an AK-47 assault rifle, point the gun at them, and exclaim "I know who you guys are and I'm going to get you . . . fuckers." The two then hid behind a car. They called the police after the person went inside 556. They told the responding officers what had happened and gave a general description of the gunman. Their description lacked detail because it was dark. Other officers arrived, secured the area around 556, conducted a surveillance of 556, ran license checks on two vehicles parked on the driveway, and learned that one of the vehicles was registered to defendant. At some point, defendant's wife exited 556, got in one of the vehicles, and drove away. When officers stopped and arrested her, she revealed that there was an 11-month-old infant sleeping upstairs in a bedroom. Later, defendant left 556 and displayed himself as fitting the general description of the gunman. He walked across the street. He continued down the sidewalk for six or eight houses where he encountered officers who took him into custody. Defendant was under the influence of cocaine. He denied that any weapons were in the house. He stated that there was an 11-month-old infant sleeping in the upstairs bedroom. He did not respond to questions whether anyone else or animals such as dogs were in the house. He admitted to an altercation with two men who were harassing him in front of his house. He accused them of displaying gang signs at him and planning to vandalize his car. He admitted telling them to "fuck off." At that point, the officers had not identified defendant as the gunman, did not know who was in 556, and were planning to let defendant's wife back inside 556 to retrieve her baby.
At least four officers drew their guns and announced themselves at the entrance to 556. After hearing no response, they entered 556 to search for people, weapons, or dogs. An officer went into a room to make sure that no one was inside and saw a Norinco MAK-90 assault rifle protruding from a box.
MOUNTAIN VIEW CASE
On September 21, 2008, at 2:20 a.m., police responded to residents' reports of having heard shots in the Rengstorff Avenue area. They searched the apartment complex behind defendant's residence but found nothing.
The same weekend, defendant's wife stayed with her mother in Watsonville. The wife's demeanor provoked the mother to call the Mountain View Police to make a welfare check on defendant. Police responded to defendant's residence and received no response. They found an open door, called out for defendant, and received no response. They entered the residence and found defendant lying on a bed with a loaded Bushmaster 223 machine pistol strapped to his chest with live and expended bullets in the room. Defendant had a blood alcohol content of .18 percent and a positive test for the prescription drug codeine, which makes worse alcohol's effect on the human body. A window screen in the room had been taken off, and the window sill had marks consistent with powder burns from weapon fire. Defendant's truck was parked 15 feet outside the window. The truck had bullet holes through it and bullet fragments in it.
MOTION TO SUPPRESS THE SAN JOSE WEAPON
Defendant unsuccessfully moved to suppress the MAK-90 during the preliminary hearing and in the trial court. In opposition, the People argued that "the officers were justified in entering the home without a warrant on two grounds: they had exigent circumstances; and they were doing a protective sweep." In denying the motion, the trial court explained: "In this matter, the nature of the threat made to Misters Bracamonte and Rodriguez, the kind of weapon that they described the gunman pointing at them, along with the fact that the victims could not identify the defendant as the gunman, does support the People's justification that an emergency situation existed which did threaten the lives of the officers, as well as the infant left in the home."
Defendant contends that the warrantless entry into his residence was not justified under any exception to the warrant requirement. We disagree.
In reviewing the denial of a motion to suppress evidence, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A warrantless search is " 'per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' " (Arizona v. Gant (2009) 556 U.S. 332, __ [129 S.Ct. 1710, 1716]; see also People v. Redd (2010) 48 Cal.4th 691, 719.) The Fourth Amendment, however, is not absolute; it prohibits unreasonable police action, not all police intrusions that infringe on the sanctity of one's abode. " '[T]he ultimate touchstone of the Fourth Amendment,' . . . 'is "reasonableness." ' [Citation.] Therefore, although 'searches and seizures inside a home without a warrant are presumptively unreasonable,' [citation], that presumption can be overcome. For example, 'the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.' " (Michigan v. Fisher (2009)_U.S. __,____ [130 S.Ct. 546, 548].) Thus, where exigent circumstances exist, "the failure to comply with the warrant requirement is justified." (People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) One recognized exigent circumstance that will support the warrantless entry of a home is the risk of danger to police or others. (Warden v. Hayden (1967) 387 U.S. 294, 298-299 ["The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others."]; People v. Celis (2004) 33 Cal.4th 667, 676.) The prosecution bears the burden of proving exigent circumstances that would justify a warrantless search or arrest. (Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750; People v. Brown (1989) 210 Cal.App.3d 849, 855.)
" 'As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or "hunches," but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience.' " (People v. Duncan (1986) 42 Cal.3d 91, 97-98.) The standard is an objective one: "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant." (Brigham City v. Stuart (2006) 547 U.S. 398, 404, italics omitted; see also People v. Ortiz (1995) 32 Cal.App.4th 286, 292 [facts known to officer must demonstrate his or her belief in existence of exigent circumstances was objectively reasonable].)
The presence of a hidden weapon can create a danger to both officers and the public. In New York v. Quarles (1984) 467 U.S. 649 (Quarles), the police believed that the suspect hid a weapon in a supermarket, thereby posing a real and immediate threat to public safety. (Id. at p. 653.) The court stated, "[s]o long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it." (Id. at p. 657.) Although Quarles created a public safety exception to the requirement of administering Miranda warnings before custodial interrogation (Quarles, supra, at p. 653 ["we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda"]), its discussion about the need for officers to act quickly to protect the public safety is instructive. The court concluded that the discovery of the firearm in a public place was imperative to protect officer and public safety. (Id. at pp. 657-660.)
Other courts have concluded that a warrantless search for a weapon, based on the concern for officer and public safety, is permissible under the exigent circumstances exception to the warrant requirement. For example, in United States v. Antwine (8th Cir. 1989) 873 F.2d 1144 (Antwine), the defendant pointed a handgun at two FBI agents who were speaking to him at his front door. The agents backed off, and the defendant shut his door. About 20 minutes later, the defendant came outside and was arrested in his front yard. An agent then entered the house and conducted a protective sweep. He discovered that there were two children in the house. He decided to search the house for the gun so as not to leave the children alone with the weapon. His sole purpose for searching for and recovering the weapon was the safety of the children. Guided by Quarles, the court concluded that the warrantless seizure of the handgun, necessitated by the exigency, was not unreasonable. (Antwine, supra, at pp. 1145-1147.) The court explained: "The clear implication of Quarles is that a warrantless seizure of a weapon may be considered 'reasonable' within the meaning of the Fourth Amendment when justified by an officer's legitimate concern for someone's safety." (Id. at p. 1147.)
Similarly, in Sturdivant v. United States (D.C.App. 1988) 551 A.2d 1338, officers arrested the defendant at his house after receiving information that he had shot someone with a sawed-off shotgun. The codefendant, who was also at the house, informed the officers that the gun was in the attic crawlspace. While the defendant was being taken to police headquarters, officers conducted a warrantless search for the gun, which they found and seized. (Id. at pp. 1339-1340.) In finding that exigent circumstances existed, the court stated: "At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life. . . . In addition, the police knew that if the gun remained in the house after [the defendant] and [the codefendant] were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it." (Id. at p. 1342.)
In State v. Brumfield (La.App. 2006) 944 So.2d 588, the officer testified that, after the defendant was placed in the patrol vehicle, he went back to the trailer to search for the gun because he knew small children resided at the trailer, and he feared that one of them might find the gun. (Id. at p. 596.) The court stated: "We find that in the instant matter, the highly probable threat of the presence of a handgun at the trailer where several children lived created a special exigency for [the officer]. Under these exigent circumstances, it was not unreasonable for [the officer], in protecting the safety and welfare of children, to search for and seize the defendant's loaded handgun from the trailer immediately following the securing of the defendant in his police unit." (Id. at p. 597.)
Automobile cases have employed the same rationale—that the presence of a weapon may create an exigency because of their potential threat to human life. For example, in Cady v. Dombrowski (1973) 413 U.S. 433, the Supreme Court concluded that the warrantless search and seizure of a weapon by a police officer from the trunk of a vehicle towed to a private garage was not unreasonable. (Id. at pp. 442-447.) The court explained that the justification of "concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle" was immediate and constitutionally reasonable. (Id. at p. 447.)
And in Commonwealth v. Stewart (Pa.Super. 1999) 740 A.2d 712, after receiving information about a shooting from a vehicle, police officers arrested the defendant who was a passenger in the suspect vehicle and was identified by the victim as one of the shooters. The defendant and the driver were taken into custody. They were patted down, but no weapons were found on their persons. An officer conducted a warrantless search of the vehicle and found two handguns under the floor mats. (Id. at p. 714.) In finding exigent circumstances, the court stated: "The officers were faced with two equally difficult and dangerous situations: innocent persons finding the gun and getting hurt as they handled it and an officer being injured by the gun as he stepped into the car to turn off the ignition. The officers and the public were in danger if the weapons were not recovered; thus, there was a need for immediate police action." (Id. at pp. 718-719.)
The rationale of these cases supports our conclusion that the facts of the present case created an exigency that reasonably required an immediate search for the gun. At the time the police commenced the search, they knew that (1) an assault weapon had been used in a serious crime, (2) the weapon had not been retrieved, and (3) the weapon was likely inside 556. The presence of such a weapon creates a special exigency because of its potential threat to human life. The officers also knew that defendant had denied knowing of any weapon in the house. Thus, by accepting defendant's denial in the face of their suspicion that a weapon was inside 556, they could reasonably infer that someone else could be the gunman and was inside 556 with the weapon. Moreover, defendant did not directly answer whether other people besides his baby were inside 556. Thus, the officers were not required to accept that defendant was the gunman and had left the gun in a house empty but for an infant. In addition, the officers reasonably intended to allow defendant's wife to enter the house and retrieve her baby rather than force her to wait outside the secured house while the officers obtained a search warrant. The search was therefore justified to deny the wife access to the gun.
The possible presence of a gun and other people in the house created the danger that the gun could be used in another crime or against the officers. The immediate search of the house was not unreasonable, and the trial court did not err in denying defendant's motion to suppress.
MOTION TO CONSOLIDATE
The People sought to consolidate the San Jose and Mountain View cases "because the offenses are either crimes of the same class or connected together in their commission." The prosecutor explained: "They arise out of a situation where the defendant is in his home or near his home on both occasions. He has an assault rifle in both occasions. He's under the influence of controlled substances on both occasions. I think it's clear from our previous discussed facts of each case that they are in the same class. They don't need to be identical charges for them to be consolidated together. And the preference is for consolidation. [¶] And as far as the strengths and weaknesses of the cases, sounds like counsel are saying the other case is stronger than their own case but each case stands on its own. [¶] We believe that it is proper for consolidation, that it is the presumption as well as what should happen in this case based on the similarities of the offenses. And that there are no--there is no undue prejudice of the defendant in that the People would obviously not be arguing the defendant is a bad person because he did these things. And we don't believe that the burden of the People would be shifted or lessened because of the fact that there are two incidents that we have to prove. I mean there are many cases which are consolidated which involve two different robberies of two different banks or whatever which is essentially what this case is about. Two different incidents involving the same type of behavior, which should be consolidated."
Defendant objected on the ground that consolidation would unduly prejudice him. He asserted: "It lightens the burden to the prosecutor because it puts in the mind of the jurors that [defendant] may be a bad guy and lightens their burden. If the cases were tried separately, they would look at the facts separately, and I think that is the appropriate process that we should go through in this case." He added: "One of the factors . . . is whether one case was weaker than the other and one case is stronger, and that's essentially what we have here. [¶] Unfortunately, [the Mountain View] case is somewhat stronger and [the San Jose] case is somewhat weaker. And the ability of the district attorney to put them together adds to both of them essentially, and I think that is prejudicial to [defendant]. [¶] I think that there may be conflicting defenses in the two cases, which would probably hinder [defendant] particularly on the second case."
The trial court explained: "I am going to order consolidation of these two Informations at this time. The Court finds this is of the same class, the common elements or threads I think in both, that he was under the influence in both, and there is an assault weapon alleged in each case, and there is common elements that would make it in my opinion cross-admissible at trial anyway."
Defendant contends that the trial court erred in granting the People's motion to consolidate the San Jose and Mountain View cases. The error, he asserts, deprived him of his rights to a fair trial in violation of due process of law guaranteed under the Fifth and Fourteenth Amendments to the federal Constitution. He does not challenge that the statutory requirements for joinder were met here. He argues that "joinder actually caused [him] unfair prejudice."
"[Penal Code] [s]ection 954 governs joinder and severance, providing in pertinent part: 'An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .' When, as defendant concedes here, the statutory requirements for joinder are satisfied, a defendant has the burden to clearly establish a potential of prejudice sufficient to warrant separate trials." (People v. McKinnon (2011) 52 Cal.4th 610, 630 (McKinnon).)
" ' "The law prefers consolidation of charges." ' " (People v. Smith (2007) 40 Cal.4th 483, 510 (Smith).) "The purpose underlying [section 954] is clear: joint trial 'ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.' " (People v. Soper (2009) 45 Cal.4th 759, 772.)
The denial of severance or grant of consolidation is reviewed for abuse of discretion. (Smith, supra, 40 Cal.4th at p. 510.) "To demonstrate that a denial of severance was reversible error, [the] defendant must ' "clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried." ' " (Ibid.) However, even if a trial court's severance ruling was correct at the time it was made, we must reverse the judgment if the defendant establishes that joinder actually resulted in " ' "gross unfairness" amounting to a denial of due process.' " (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
" 'Denial of a severance motion may be an abuse of discretion if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible "spillover" effect that might affect the outcome; or one of the charges carries the death penalty.' " (McKinnon, supra, 52 Cal.4th at p. 630.)
According to defendant (1) "the only cross-admissible evidence was some of the testimony of the firearms expert regarding prohibited possession of assault weapons," (2) the Mountain View case was more inflammatory than the San Jose case because it involved indefensible behavior ("making target practice of his vehicle on the street in the middle of a populated neighborhood") while the San Jose case involved purposeful behavior ("confrontation with specific people in defense of his family and property in which no shots were fired"), and (3) "the evidence of the negligent shooting in the Mountain View case was significantly stronger than the evidence that [defendant] intended an unconditional threat in the San Jose case."
We need not, and do not, examine defendant's argument that the trial court erred in finding evidence related to the two cases to be cross-admissible because "defendant fails to establish that, notwithstanding any absence of cross-admissibility, he was unfairly prejudiced by joinder of the two murder cases. ' "While we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice." ' [Citations.] '[E]ven if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion.' " (McKinnon, supra, 52 Cal.4th at pp. 630-631.) As we discuss below, defendant fails to convince us that factors other than the lack, if any, of cross-admissibility, demonstrate the need for severance.
Neither offense was especially likely, or more likely than the other, to inflame the jury's passions. In each incident, defendant wielded a dangerous weapon while under the influence of a drug. In the San Jose incident, he endangered specific individuals; in the Mountain View incident, he endangered the public generally. Defendant's argument that the Mountain View case was appreciably more inflammatory than the San Jose case raises a difference of opinion rather than demonstrates an irrationality in the trial court's implicit opinion.
Similarly, this matter did not involve consolidating a strong Mountain View case with a weak San Jose case to improve the likelihood of conviction in the San Jose case. Our review of the evidence convinces us that neither case was appreciably stronger than the other. Defendant's point is that the evidence of a criminal threat in the San Jose case was weak because it was "not particularly specific, immediate or unconditional." But defendant pointed a gun at the victims and said, "I'm going to get you guys." And, hearing that, the victims immediately hid behind a car. Defendant's point again simply raises a difference of opinion rather than demonstrates an abuse of discretion.
Our review of the record fails to disclose any abuse of discretion by the trial court in consolidating the two cases.
Defendant, however, also argues that joinder actually resulted in a denial of fundamental fairness so grossly unfair as to transgress due process. He claims that the prosecutor urged the jury to consider spillover evidence. As to this point, he cites the following two arguments made by the prosecutor.
"Now, not only do we have these individual instances, there's corroboration between these cases, as well. [¶] You have a situation where--I mean, you don't take these cases—these incidents in a vacuum. You look at the whole picture. [¶] And what we have here is between the cases, we have the defendant who is the gunman in both cases. [¶] We have him using alcohol in both cases. [¶] We have him using drugs in both cases. [¶] We have him possessing illegal assault weapons in both cases. [¶] We have him illegally using those assault weapons in each case. [¶] We have that he actually is a person who is starting a situation which requires police contact in both cases. [¶] We have high round ammunition clips in both indications. [¶] We have at least one of the same cars in both cases. [¶] In both cases, he causes fear in--he scares people, his neighbors or people who are nearby in both cases. [¶] . . . [¶] And that's something for you to consider in determining the strength of this case."
"And by threatening people, by using these weapons, by shooting up his--shooting out of his house, these are all factors for you to consider in determining his guilt in this case."
But these brief remarks do not urge the jury to convict in one of the cases based on evidence relevant to the other case as much as they simply highlight obvious similarities in the two cases. In any event, the trial court instructed the jury that the evidence in the San Jose case was not admissible to prove guilt in the Mountain View case and vice versa as follows: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." (Cf. People v. Thomas (2011) 52 Cal.4th 336, 352 ["Finally, defendant contends the trial court should have instructed the jury on its own motion that the evidence in the McDonald case was not admissible to prove his guilt in the Grote case and vice versa. The contention lacks merit because the jury received proper instruction. The point was addressed by CALJIC No. 17.02, which was given and provided in pertinent part: 'Each count charges a distinct crime. You must decide each count separately.' "].) We presume that the jury understood and properly applied the instruction. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Joinder of the cases "did not render defendant's joint trial fundamentally unfair." (McKinnon, supra, 52 Cal.4th at p. 632.)
RIGHT TO BEAR ARMS
Penal Code section 12280, subdivision (b), makes possession of an assault weapon, as defined, a felony.
Defendant contends that Penal Code section 12280, subdivision (b), violates his right to bear arms under the Second Amendment to the United States Constitution. (District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller) [ban on handgun possession in the home, along with rendering any lawful firearm in the home operable for the purpose of immediate self-defense, violates the Second Amendment].)
In 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.) 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.' " (Id. at p. 627.) 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.)
More recently, the United States Supreme Court issued its decision in McDonald v. City of Chicago (2010) 561 U.S. __ (McDonald). It held that the individual right conferred by the Second Amendment is fully applicable to the states, calling that right "fundamental." (McDonald, supra, at p. _ .) But the court did not otherwise expand or contract the substantive scope of the Second Amendment right Heller recognized. (See United States v. Marzzarella (3rd Cir. 2010) 614 F.3d 85, 88, fn. 3.)
Defendant recognizes that the court in People v. James (2009) 174 Cal.App.4th 662, 676 (James), rejected a challenge similar to his. Nonetheless, he claims that the James court improperly focused on incidents in which assault weapons were used illegally rather than the type of weapons typically possessed by law-abiding citizens for lawful purposes. We disagree.
The James court analyzed the same argument that defendant makes. (James, supra, 174 Cal.App.4th at pp. 674-677.) Citing Heller, as well as United States v. Miller (1939) 307 U.S. 174 (Miller), the James court concluded that assault weapons "are at least as dangerous and unusual as the short-barreled shotgun at issue in [Miller]." (James, supra, at p. 677.) In reaching this conclusion, the James court noted that the right to bear arms protection in the Second Amendment does not extend to every type of weapon. (James, supra, at p. 674.)
As explained by the Heller court, "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 [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.' " (Heller, supra, 554 U.S. at p. 622.)
After discussing the types of weapons protected by the Second Amendment, the Heller court stated: "Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's 'ordinary military equipment' language must be read in tandem with what comes after: '[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.' [Citation.] The traditional militia was formed from a pool of men bringing arms 'in common use at the time' for lawful purposes like self-defense. 'In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.' [Citations.] Indeed, that is precisely the way in which the Second Amendment's operative clause ['the right of the people to keep and bear Arms, shall not be infringed'] furthers the purpose announced in its preface ['[a] well regulated Militia, being necessary to the security of a free State']. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (Heller, supra, 554 U.S. at pp. 624-625.) Rather, "the right secured by the Second Amendment is not . . . a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Id. at p. 626.) It is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. The Second Amendment protects the right to possess a handgun in one's home because handguns are a "class of 'arms' that is overwhelmingly chosen by American society" for the lawful purpose of self-defense. (Heller, supra, at p. 628.) Assault weapons are not. (James, supra, 174 Cal.App.4th at p. 676.)
Accordingly, we agree with the James court and conclude that Penal Code section 12280, subdivision (b), does not prohibit conduct protected by the Second Amendment to the United States Constitution.
DISPOSITION
The judgment is affirmed.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.
Miranda v. Arizona (1966) 384 U.S. 436.