Opinion
C065236
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. CARL EDWARD MEYER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10F00924)
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGEMNT]
THE COURT:
It is ordered that the opinion filed in this case on July 26, 2011, be modified as follows:
1. On page 2, the sentence beginning with "We conclude that" and ending with "probable cause on that issue" is deleted and the following sentence is inserted in its place:
We conclude that transporting or importing assault weapons into California is not protected by the Second Amendment, and that defendant forfeited his equal protection challenge.
2. On pages 7 and 8, the sentences which read "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.)" are deleted, and replaced with the following:
But defendant's equal protection claim is forfeited because he did not raise it and preserve it in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852 [only claims properly raised and preserved are reviewable on appeal]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [even constitutional rights are subject to forfeiture]; People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14 [equal protection claim forfeited for failure to raise it in trial court]; Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1534 [same].) We decline to exercise our discretion to review this forfeited claim. (In re Sheena K., suprar 40 Cal.4th at p. 887, fn. 7.) We reject defendant's invocation of the "unauthorized sentence" exception to forfeiture, which covers "obvious legal errors at sentencing" (Smith, supra, 24 Cal.4th at p. 852), because defendant does not challenge a "particular sentence or term" (In re Sheena K., supra, 40 Cal.4th at p. 882, fn. 3), but instead challenges the validity of the crime for which he was convicted. We also reject defendant's assertion of the futility exception to forfeiture. Undaunted by our decision in James, defendant raised and preserved his Second Amendment claim in the trial court, citing McDonald. Defendant could have done the same for his equal protection claim. Indeed, on appeal, defendant uses McDonald in his Second Amendment challenge the same way he uses McDonald in his equal protection challenge -- as a claimed basis for subjecting the Act to elevated scrutiny and revisiting James.
These modifications do not change the judgment.
The petition for rehearing is denied.
FOR THE COURT:
HULL, Acting P. J.
BUTZ, J.
MAURO, J.