Opinion
H050305
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ZACHARY WANN, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C2115054
Wilson, J.
Defendant Jonathan Zachary Wann pleaded no contest to one misdemeanor count of driving with a blood-alcohol content level of .08 or more (Veh. Code, § 23152, subd. (b)), and one misdemeanor count of carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(1).) The trial court suspended imposition of sentence and placed Wann on probation for three years with a 10-year firearm restriction.
Undesignated statutory references are to the Penal Code.
Wann argues that his conviction must be overturned because it violates his Second Amendment right to possess a firearm, citing the United States Supreme Court's decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1 [142 S.Ct. 2111, 213 L.Ed.2d 387] (Bruen). Specifically, he contends that both section 25400 and California's overall licensing scheme are unconstitutional.
Multiple courts have recently considered and rejected similar facial challenges to the constitutionality of section 25400 and California's firearm licensing scheme following Bruen. (In re D.L. (2023) 93 Cal.App.5th 144 (D.L.); In re T.F.-G. (2023) 94 Cal.App.5th 893, 908 (T.F.-G.); People v. Miller (2023) 94 Cal.App.5th 935 (Miller); People v. Mosqueda (2023) 97 Cal.App.5th 399 (Mosqueda).
Consistent with those decisions, we conclude the challenged statutes are not unconstitutional following Bruen, and we affirm the judgment.
I. Factual and procedural background
On November 16, 2021, the Santa Clara County District Attorney filed a complaint charging Wann with three counts: (1) carrying a concealed firearm in a vehicle, a felony (§ 25400, subd. (a)(1); count 1); (2) driving under the influence of alcohol, a misdemeanor (Veh. Code, § 23152, subd. (a); count 2); (3) driving with a blood alcohol level of .08 or more, a misdemeanor (Veh. Code, § 23152, subd. (b); count 3).
Section 25400, subdivision (a)(1), at issue in this appeal, provides: "(a) A person is guilty of carrying a concealed firearm when the person does any of the following: (1) Carries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon the person ...."
On June 15, 2022, the trial court reduced the count 1 charge to a misdemeanor, and Wann pleaded no contest to counts 1 and 3. The court dismissed count 2, suspended imposition of sentence, and placed appellant on three years of formal probation, including the 10-year firearm restriction.
The following week, on June 23, 2022, the United States Supreme Court issued its decision in Bruen, in which it held that New York's requirement that an applicant for a public-carry license demonstrate a special need for self-defense violated the Second Amendment. (Bruen, supra, 597 U.S. at p. 11 ["[t]he government further conditions issuance of a license to carry on a citizen's showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State's licensing regime violates the Constitution."].)
Wann timely appealed and requested a certificate of probable cause on the basis of Bruen, asserting: "Similar to New York's law, California's law broadly prohibits the possession of a concealed firearm on a person or in a vehicle. [§ 25400.] Like New York, the California licensing scheme unconstitutionally requires an individual to 'demonstrate to government officials some special need' prior to exercising the right to 'public carry for self-defense.'" The trial court granted the request.
Wann acknowledges that he did not raise a facial constitutional challenge in the trial court prior to requesting the certificate of probable cause. He argues, however, that his request was sufficient to preserve his right to present the issue on appeal because it was presented to the trial court, which "declined to rule on it," instead certifying it for appellate review. Wann has not forfeited his arguments here, as Bruen was not decided until after Wann entered his plea. (See, e.g., D.L., supra, 93 Cal.App.5th at p. 156 [no forfeiture because appellant could not have predicted change in law heralded by Bruen, and facial challenge is pure question of law reviewed de novo].)
II. Discussion
Wann argues that his conviction for possession of a firearm violates the Second Amendment. Specifically, he contends that, pursuant to Bruen, California's concealed carry laws-including the restriction in section 25400, and the licensing scheme as a whole-are now facially unconstitutional and cannot be saved by severance or judicial revision. Wann also asserts that he has standing to bring this appeal, despite not having applied for a concealed carry license, because he was actually convicted of violating a provision of California's licensing scheme.
The Attorney General concedes that California's "good cause" requirement for obtaining a concealed-carry license-which is no longer enforced by the state-was unconstitutional under Bruen, but argues the clause was severable and the remainder of the licensing scheme remains valid. The Attorney General further argues that Wann lacks standing to bring the facial challenge because he never applied for a license and failed to demonstrate that he would have been issued one.
A. Standing
Whether a party has standing to challenge the constitutionality of a statute depends in part on whether the challenge is facial or as-applied. (See, e.g., D.L., supra, 93 Cal.App.5th at pp. 156-158.) Wann purports to bring a facial challenge to the constitutionality of both section 25400, the statute under which he was convicted, and California's licensing statutes set forth at section 26150, et seq. The Attorney General argues that Wann's challenge to the licensing scheme is as-applied.
1. Facial vs. as-applied challenge
" '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.'" (D.L., supra, 93 Cal.App.5th at p. 156, quoting Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) "A facial challenge seeks to void the statute as a whole by showing that' "no set of circumstances exists under which the Act would be valid," i.e., that the law is unconstitutional in all its applications.'" (D.L. supra, at p. 156, quoting Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449 [170 L.Ed.2d 151, 128 S.Ct. 1184].)
By contrast, "an 'as applied' challenge may seek 'relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied[.]'" (D.L., supra, 93 Cal.App.5th at p. 157, quoting Tobe, supra, 9 Cal.4th at p. 1084.) "An 'as applied' 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.' [Citation.] 'When a criminal defendant claims that a facially valid statute or ordinance has been applied in a constitutionally impermissible manner to the defendant, the court evaluates the propriety of the application on a case-by- case basis to determine whether to relieve the defendant of the sanction." (D.L., supra, 93 Cal.App.5th at p. 158, citing Hale v. Morgan (1978) 22 Cal.3d 388, 404.)
Wann presents facial challenges to section 25400 and California's licensing scheme. He challenges the text of the statutes themselves, not their application to his particular circumstances, and he seeks to void the statutes as a whole by showing that they are unconstitutional in all their applications. (D.L. supra, 93 Cal.App.5th at p. 156.)
2. We assume without deciding that Wann has standing
The Attorney General argues that Wann cannot establish that he was injured "by the existence of any unconstitutional good cause requirement because he has not established that he would otherwise have been issued a license under the remaining licensing requirements." According to the Attorney General, there is no evidence Wann suffered a constitutional injury from the licensing requirement because he never applied for a concealed-carry license and was denied one.
Wann argues that, because his challenge is facial rather than as-applied, he did not need to apply for a license to have standing. Under Bruen, he contends, "someone prosecuted under a firearms statute has the requisite injury to establish standing for a facial challenge. This is true both as to the statute criminalizing their conduct, as well as the licensing statute that provides a defense to the prosecution." Separately, he claims that he also challenges the constitutionality of section 25400 by itself, which does not require a license.
" 'It is well-settled law that the courts will not give their consideration to questions as to the constitutionality of a statute unless such consideration is necessary to the determination of a real and vital controversy between the litigants in the particular case before it. It is incumbent upon a party to an action or proceeding who assails a law invoked in the course thereof to show that the provisions of the statute thus assailed are applicable to him and that he is injuriously affected thereby.'" (Miller, supra, 94 Cal.App.5th at p. 941, quoting People v. Perry (1931) 212 Cal. 186, 193.) "An individual therefore has no standing to challenge the validity of a statute unless that individual has been impacted by the enforcement of the statute." (Miller, supra, at p. 941, quoting People v. Leung (1992) 5 Cal.App.4th 482, 490, fn. 2.)" 'This rule does have limited exceptions-most commonly invoked in free speech cases.'" (Miller, supra, at p. 941, quoting People v. Buza (2018) 4 Cal.5th 658, 675.)
We assume without deciding that Wann has standing to raise the arguments in his appeal because, as we explain below, we deny his claims on the merits. (See, e.g., Miller, supra, 94 Cal.App.5th at p. 943, citing People v. Mungia (2008) 44 Cal.4th 1101, 1143.)
B. Applicable law and standard of review 1. California's concealed carry ban and pre-Bruen licensing scheme
" 'California has a multifaceted statutory scheme regulating firearms. State law generally prohibits carrying concealed firearms in public, whether loaded or unloaded. [§ 25400.] State law also generally prohibits carrying loaded firearms on the person or in a vehicle in any public place or on any public street, in either an incorporated city or a "prohibited area" of "unincorporated territory." [§ 25850.] Finally, state law generally prohibits carrying unloaded handguns openly on the person in a public place or on a public street, in either an incorporated city or a "prohibited area" of an "unincorporated area of a county." [§ 26350.]'" (Miller, supra, 94 Cal.App.5th at p. 939, quoting Peruta v. County of San Diego (9th Cir. 2016) 824 F.3d 919, 925.)
Notwithstanding those restrictions, California also provides a mechanism for an individual to apply for a license to carry a concealed weapon. (T.F.-G., supra, 94 Cal.App.5th at p. 908; § 26150, et seq.) At the time Wann was convicted, section 26150 provided that" 'the sheriff of a county may issue a [concealed-carry] license to [an eligible applicant] upon proof of all of the following: [¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of the license. [¶] (3) The applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business. [¶] (4) The applicant has completed a course of training [relating to firearms safety, handling, shooting, and permissible usage].'" (T.F.-G., supra, 94 Cal.App.5th at p. 908, citing former § 26150, subd. (a); see also D.L., supra, 93 Cal.App.5th at p. 155, fn. omitted, citing §§ 26185, subd. (a), 26195, subd. (a).)
2. Bruen
In Bruen, the United States Supreme Court considered New York's firearm licensing provisions, which required anyone seeking to possess a firearm at home, or in one's place of business, to convince a licensing officer that the applicant "is of good moral character, has no history of crime or mental illness, and that 'no good cause exists for the denial of the license.' [Citation.]" (Bruen, supra, 597 U.S. at p. 12].) To obtain an unrestricted license to carry a firearm outside one's home or business, therefore, an applicant was required to demonstrate that" 'proper cause exists.'" (Ibid.)
Recognizing "an individual's right to carry a handgun for self-defense outside the home," the court ruled that the licensing regime violated the Second Amendment because it required an applicant to demonstrate "a special need for self-defense." (Bruen, supra, 597 U.S. at p. 10].) The court nevertheless clarified that the Second Amendment remains "subject to certain reasonable, well-defined restrictions." (Id. at p. 70.) In addition, it articulated a framework for determining whether a particular firearm restriction violates the Second Amendment: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" (Id. at p. 24; see also T.F.-G., supra, 94 Cal.App.5th at p. 910.)
3. Response from Attorney General, courts, and Legislature
The day after Bruen was decided, the Attorney General acknowledged that the "good cause" requirement in former section 26150 was unconstitutional, and accordingly "instructed firearm-permitting agencies that proof of 'good cause' is no longer required in order for an applicant to receive a concealed carry license." (D.L. supra, 93 Cal.App.5th at p. 148; T.F.-G., supra, 94 Cal.App.5th at p. 916, fn. 19.) The Attorney General further advised local officials to "continue to apply and enforce all other statutory prerequisites to obtaining a public-carry license." (T.F.-G, supra, 94 Cal.App.5th at p. 916, fn. 19.)
Multiple courts soon held that California's "good cause" requirement was unconstitutional following Bruen, but that the clause was severable, and the remainder of the licensing scheme remained valid and enforceable. (See, e.g., D.L., supra, 93 Cal.App.5th 144; T.F.-G., supra, 94 Cal.App.5th 893; Miller, supra, 94 Cal.App.5th 935; Mosqueda, supra, 97 Cal.App.5th 399.)
Meanwhile, on September 26, 2023, Senate Bill No. 2 (2023-2024 Reg. Sess.) (Senate Bill No. 2) was signed into law, taking effect on January 1, 2024. (2023 Cal. Legis. Serv. Ch. 249 (S.B. 2).) Senate Bill No. 2 amended numerous statutes within California's statutory scheme for regulating firearms, including removing the "good cause" and "moral character" requirements from section 26150 and providing that a sheriff "shall" issue a license if the statutory criteria are satisfied. (See Stats. 2023, ch. 249, § 10.)
We requested supplemental briefing from the parties as to the impact of Senate Bill No. 2 on Wann's appeal, if any. Both Wann and the Attorney General argued that, because Wann was convicted under the version of the law in effect at the time, Senate Bill No. 2 has no impact on Wann's appeal.
4. Standard of review
" 'The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.' [Citation.]" (People v. Alexander (2023) 91 Cal.App.5th 469, 474.)
" 'A defendant challenging the constitutionality of a statute carries a heavy burden: "The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity." '" (People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1250, quoting People v. Fuiava (2012) 53 Cal.4th 622, 696.)
C. Analysis
Wann argues that his conviction must be vacated because California's concealed carry law and licensing regime are unconstitutional. He contends "Bruen makes clear that the Second Amendment 'presumptively protects' possession of a firearm for selfdefense in the public space," so that section 25400, subdivision (a)(1) is unconstitutional for banning the public carry of firearms for self-defense. In addition, he argues that California's licensing scheme cannot survive severing the "good cause" requirement and other provisions deemed unconstitutional under Bruen.
Similar or identical arguments have recently been rejected by multiple California courts. As the court in Mosqueda explained: "Relying on Bruen, individuals charged in California with unlawfully possessing a handgun have contended that their charges and resulting convictions are unconstitutional. They have argued, unsuccessfully, that Bruen rendered California's entire licensing scheme facially unconstitutional, and as a result, it was unconstitutional to punish nonfelons such as them for carrying a firearm in public solely because they did not have a license." (Mosqueda, supra, 97 Cal.App.5th at p. 403, citing T.F.-G., supra, 94 Cal.App.5th 893; Miller, supra, 94 Cal.App.5th 935; D.L., supra, 93 Cal.App.5th 144.)
We summarize these cases briefly, and then explain why we reach the same conclusion.
1. Post-Bruen case law in California
In D.L., the court rejected a facial challenge to section 25850, subdivision (a), which provides that "[a] person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated [territory]." (D.L., supra, 93 Cal.App.5th 144.) The court held that the unconstitutional "good cause" requirement in former section 26150 was severable and that "California's firearm licensing framework-and the criminal penalties under section 25850-remain valid." (Id. at p. 165.) As the court explained, "the Bruen majority's actual holding was quite limited-that New York's 'proper-cause' licensing requirement was unconstitutional." (Ibid.) Bruen "did not undermine regulation of guns based on objective criteria." (Ibid.)
After severing the "good cause" provision from the licensing requirements, the court in D.L. held that section 25850 did not "pose a present total and fatal conflict with applicable constitutional prohibitions" and was "enforceable and [] not unconstitutional on its face." (D.L., supra, 93 Cal.App.5th at p. 167.)
Similarly, in T.F.-G., a different panel of this court considered the argument that "if any requirement for issuance of a license to carry a loaded firearm was unconstitutional, then the application of section 25850 to punish any unlicensed person must also be unconstitutional." (T.F.-G., supra, 94 Cal.App.5th at p. 909.) The court noted the limited scope of the holding in Bruen: "the Supreme Court confirmed that states may impose 'reasonable, well-defined' restrictions on the constitutionally protected 'right to bear commonly used arms in public' and set forth the means by which courts may evaluate whether licensing requirements withstand constitutional scrutiny." (Id at p. 914.)
To find the statute unconstitutional, the court held, it "would need to find that section 25850 has no significant application in constitutionally valid circumstances-i.e., that it is unconstitutional in at least the generality or great majority of cases." (T.F.-G., supra, 94 Cal.App.5th at p. 916.) However, because the scope of the statute was "broader than the scope of a given licensing regulation," the facial challenge failed. (Id. at pp. 915-916.)
In Miller, the defendant was charged with violating section 25400. (Miller, supra, 94 Cal.App.5th at p. 943.) The court noted that the defendant was not charged with failing to obtain a license, although that would have exempted her from the reach of section 25400. (Ibid.) Accordingly, the court held that "her arguments are based on the flawed premise that section 25400 is unconstitutional without a valid licensing scheme. In this case, we need not resolve Miller's questions regarding the constitutionality of California's firearm licensing statutes because, even if we were to conclude the licensing statutes are invalid, this would not render a charge under section 25400 unconstitutional as well." (Miller, supra, 94 Cal.App.5th at p. 943.)
The court added that, "while Bruen raises constitutional concerns regarding the licensing requirements set forth in sections 26150 and 26155, it does not suggest the concealed carry prohibitions of section 25400 are unconstitutional. Bruen addressed only the constitutionality of New York's licensing regime-not its impact on any potential criminal charges for carrying a firearm without a license. [Citation.] The constitutionality of California's concealed carry prohibition is not dependent upon the constitutionality of its licensing statutes because, while a license qualifies a holder for an exemption from the concealed carry provisions, the availability of this exemption is not constitutionally necessary. [Citations.]" (Miller, supra, 94 Cal.App.5th at p. 945.) "Whatever constitutional defects may currently exist elsewhere in California's multifaceted statutory scheme regulating firearms, section 25400 is not itself unconstitutional because of them." (Id. at p. 946.)
Lastly, in Mosqueda, the court considered a similar facial challenge to section 26150. Acknowledging that the "good cause" requirement of section 26150 is unconstitutional, the court explained that it "must determine whether that requirement can constitutionally be severed from the remainder of the statute." (Mosqueda, 97 Cal.App.5th at pp. 408-409.) "In the absence of express language confirming or prohibiting severability, such as the case here, an unconstitutional statute remains effective to the extent its invalid portions can be severed from any valid portions." (Id., quoting Hotel Employees and Restaurant Employees Intern. Union v. Davis (1999) 21 Cal.4th 585, 613 (Davis).) "An invalid portion can be severed 'if, and only if, it is "grammatically, functionally and volitionally separable." '" (Mosqueda, 97 Cal.App.5th at p. 409, quoting Davis, supra, 21 Cal.4th at p. 613.)
Applying this test, the court held that the "good cause" provision was "grammatically separable" because it was contained in a discrete subdivision of the statute and excising it "does not impair the wording or coherence of the remaining provisions in subdivision (a)." (Mosqueda, 97 Cal.App.5th at p. 409.) The provision was also functionally separable, the court held, because the remaining provisions "are complete in themselves and can be applied independently." (Ibid.) "They require an applicant to be of good moral character, to reside or work within the city or county where the license is being issued, and to have completed a firearm safety course." (Ibid.) Lastly, the provision was volitionally separable because "when the Legislature replaced former section 12050 with section 26150, it 'included the same general requirements for obtaining a license to carry a concealed weapon, which had been in former section 12050, without substantive change, but "reorganize[d]" them from a single paragraph into distinct paragraphs. [(Stats. 2010, ch. 711, § 6.)] This reorganization illustrates that the Legislature viewed the requirements as separate, and as functioning independently of one another.'" (Id., quoting D.L., supra, 93 Cal.App.5th at p. 164.)
2. Bruen did not render section 25400 or California's licensing scheme unconstitutional
We agree with the analysis in the cases summarized above and similarly conclude that neither section 25400 nor California's licensing scheme is unconstitutional in light of Bruen.
Wann argues that section 25400 is unconstitutional because it bans public carry of firearms for self-defense, and Bruen "makes clear that the Second Amendment 'presumptively protects' possession of a firearm for self-defense in the public space." After Bruen, he contends, the government bears the burden of demonstrating that the regulation at issue is "consistent with this Nation's historical tradition of firearm regulation," and it has failed to do so here with respect to section 25400. (Bruen, supra, 597 U.S. at pp. 17, 34].)
As the court explained in Miller, though, "while Bruen raises constitutional concerns regarding the licensing requirements set forth in sections 26150 and 26155, it does not suggest the concealed carry prohibitions of section 25400 are unconstitutional." (Miller, supra, 94 Cal.App.5th at p. 945.) The constitutionality of section 25400 is not dependent upon the constitutionality of the licensing statutes because, "while a license qualifies a holder for an exemption from the concealed carry provisions, the availability of this exemption is not constitutionally necessary." (Id., citing People v. Flores (2008) 169 Cal.App.4th 568, 575 (Flores).)
Moreover, the court held, Bruen did not abrogate prior opinions upholding the constitutionality of section 25400, because those opinions "were already based on the understanding that prohibitions on concealed firearms have historically been permitted by the Second Amendment." (Miller, supra, 94 Cal.App.5th at p. 945, citing District of Columbia v. Heller (2008) 554 U.S. 570, 626 [128 S.Ct. 2783, 171 L.Ed.2d 637] ["the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues"].)
We agree with the analysis in Miller. Nothing in Bruen addressed the constitutionality of section 25400's restriction on concealed carry.
Wann argues that, prior to Bruen, the constitutionality of section 25400 was "saved" by the licensing scheme in sections 26150 and 26155, "under an intermediate scrutiny analysis not rejected by [Bruen]." He contends that "the consensus is now that California's gun licensing scheme is no longer constitutional," because the "good cause" requirement of section 26150 is no longer valid. However, that is not the consensus-as the case law summarized above demonstrates, section 26150 and California's licensing scheme remain valid after severing the unconstitutional "good cause" provision. (Mosqueda, supra, 97 Cal.App.5th at p. 409.)
Wann also challenges the "moral character" requirement and the "may issue" standard in former section 26150. He contends that under Bruen, those portions of former section 26150 were unconstitutional as well, thereby rendering his conviction pursuant to section 25400 invalid. However, identical arguments have been addressed and rejected by other courts. In D.L., for instance, the court explained that the holding in Bruen was based on the "proper cause" language in the New York statute, not its use of the phrase "may issue," and it said nothing regarding the "moral character" requirement. (D.L., supra, 93 Cal.App.5th at p. 166.) Similarly, in Mosqueda, the court held that Bruen did not address the "moral character" requirement, and that, even assuming it was invalid, it was severable from the remainder of the licensing scheme. (Mosqueda, supra, 97 Cal.App.5th at p. 411.)
Senate Bill No. 2 also removed the "moral character" requirement and replaced the "may issue" standard with "shall issue." (See Stats. 2023, ch. 249, § 10.)
In sum, both section 25400 and California's licensing scheme remain constitutional following Bruen.
III. Disposition
The judgment is affirmed.
WE CONCUR: Greenwood, P.J. Bamattre-Manoukian, J.