Opinion
No. C050103.
January 8, 2007. [CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts IV., V., VI., VII. and VIII. of the Discussion.
Appeal from the Superior Court of Calaveras County, No. F3229, Richard K. Specchio, Judge, Thomas A. Smith, Judge, and William M. Kelsay, Judge.
Judge of the Alpine Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired judge of the Santa Cruz Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Thomas M. Marovich for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Gibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury convicted defendant Richard E. Wilmshurst of unlawfully possessing a machine gun and illegal assault weapons. Finding this to be an unusual case, the trial court suspended imposition of sentence and placed him on probation.
On appeal, defendant contends that the search warrant used to seize firearms from him, and the use of statements he made during the search, violated his privilege against self-incrimination. He also contends that the warrant was overbroad; that federal law preempts the state firearms control laws; that he was denied a fair hearing; and that the jury was improperly instructed.
In the published part of the opinion we hold that including in the search warrant affidavit information defendant's federal firearms license required him to keep, and information from an inspection he was required to submit to, did not violate his privilege against self-incrimination. Nor do we find that federal law preempts Penal Code sections 12220, subdivision (a) and 12280, subdivision (b), which respectively proscribe possession of machine guns and certain assault weapons. Finding no merit to defendant's remaining contentions, we will affirm the judgment.
Because defendant does not dispute his ownership of these weapons that are unlawful to possess under state law, we will not provide a separate summary of facts. Instead, we will include the facts relevant to his contentions in the discussion.
DISCUSSION
I. Procedural and Factual Background
A
During the course of his preliminary hearing, defendant moved to suppress evidence (Pen. Code, § 1538.5), asserting the invalidity of the search warrant on several grounds. The magistrate denied the motion and held defendant to answer.In the superior court, defendant requested a special hearing to renew his motion to suppress (§ 1538.5, subd. (i)), and sought to introduce additional evidence. The prosecution objected to the receipt of additional evidence. The trial court held a hearing in camera on the issue of whether this evidence had been reasonably available to defendant at the time of the preliminary hearing. ( Ibid.)
At the hearing in camera, defendant asserted that until the preliminary hearing, he was unaware that two of the agents who were present at the execution of the warrant had engaged in conduct relevant to his arguments about the overbreadth of the search. The court had its doubts whether the information concerning the extent of the agents' conduct was truly unavailable at the time of the preliminary hearing, but it also stated that it did not believe the conduct of these two agents was relevant to any theory of overbreadth. As a result, it denied the motion to introduce additional evidence.
Following the hearing in camera, the court prepared to set the matter for trial. The prosecutor reminded the court that it needed to rule on the renewed motion to suppress, limited to the record at the preliminary hearing. The court then stated, "It's denied," before returning to the matter of setting a trial date. Neither defense counsel nor defendant (who had been granted cocounsel status) raised any objection to the manner in which the court disposed of the motion before the parties adjourned for the day shortly thereafter.
This included transcripts from a preliminary hearing in an earlier proceeding (Super.Ct. Calaveras County, No. F2909) that had been dismissed pursuant to section 995.
B
As the superior court decided the renewed motion to suppress on the record of the preliminary hearing, we disregard its ruling and review the issue independently, resolving express or implied factual conflicts in favor of the magistrate's ruling. (People v. Nonnette (1990) 221 Cal.App.3d 659, 664 [271 Cal.Rptr. 329].)
A federal firearms official went to defendant's home to perform a compliance inspection in connection with defendant's federal license for importing weapons. Her supervisor had assigned her the case after determining that defendant was not on a state list of authorized firearm dealers, which he obtained from time to time for purposes of cross-checking federal licensees. This triggered an interest in determining whether defendant was conducting any operations that would require compliance with state law. In the course of her review of his records and about 21 firearms, she found several that came within California's ban against assault weapons (although they were proper under federal law). When she questioned him about them, he invoked "the Supremacy Clause." (U.S. Const., art. VI, § 2 ["the laws of the United States . . . shall be the supreme law of the land; . . . any thing in the . . . laws of any state to the contrary notwithstanding"].) Pursuant to a policy of her department, she reported her observations of possible violations of state law to California firearms officials, even though there had not been any request from them for this information. She also notified the local officials of Angels Camp that defendant might be operating a business without a business license.
The California authorities determined that defendant was not a registered firearms dealer under California law, nor had he taken advantage of a "grandfathering" registration program for otherwise-illegal assault weapons possessed before the state ban went into effect. On this basis, they obtained a search warrant for defendant's car dealership and the outbuilding at his residence. On the first floor of the outbuilding were a storage area and his living quarters with a bedroom. Under the bed and in a wooden footlocker were a machine gun and two assault rifles; seven other illegal assault weapons were in the storage area. These were the weapons that were the basis for the charges against defendant. The agents also seized every other firearm they encountered, some of which were lawfully possessed.
II. Fifth Amendment Claim Regarding Records and Inspection
Defendant contends that including in the affidavit for the search warrant information from records his federal firearms license required him to keep, and from an inspection he was required to submit to under federal firearm laws, was a violation of his privilege against self-incrimination. He relies on Haynes v. United States (1968) 390 U.S. 85 [ 19 L.Ed.2d 923, 88 S.Ct. 722] ( Haynes); Lauchli v. United States (7th Cir. 1973) 481 F.2d 408 ( Lauchli II); and Lauchli v. United States (7th Cir. 1970) 432 F.2d 1207 ( Lauchli I) (judg. vacated and cause remanded (1971) 402 U.S. 938 [ 29 L.Ed.2d 106, 91 S.Ct. 1623], opn. following remand Lauchli II, supra, 481 F.2d 408). Defendant is mistaken.
"[T]here is some possibility of prosecution — often a very real one — for criminal offenses disclosed by or deriving from the information that the law compels a person to supply. . . . But under our holdings[,] the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here [that requires those involved in an accident to provide a name and address]." (California v. Byers (1971) 402 U.S. 424, 428 [ 29 L.Ed.2d 9, 91 S.Ct. 1535].) As summarized in Byers, the cases in which the United States Supreme Court has found the privilege against self-incrimination to bar prosecution involve statutes targeting a "'highly selective group'" that is "'inherently suspect of criminal activities,'" and the focus of the required disclosure is subject matter "'permeated with criminal statutes'" rather than "'an essentially noncriminal and regulatory area of inquiry.'" (Id. at p. 430.) As neither driving nor involvement in an accident are unlawful, the required disclosures did not pose a substantial risk of self-incrimination. (Id. at p. 431; accord, Shapiro v. United States (1948) 335 U.S. 1, 3-5, 32-33 [ 92 L.Ed. 1787, 68 S.Ct. 1375] [proper to prosecute violation of price controls based on sales records that the defendant required to keep under law; any privilege in private papers against self-incrimination does not apply to "public" records kept as required by law for the purpose of collecting information on transactions that are proper subject of government regulation]; United States v. Sullivan (1927) 274 U.S. 259, 263 [ 71 L.Ed. 1037, 47 S.Ct. 607] [no privilege involved in fulfilling generally aimed obligation to provide information in a tax return].)
Marchetti v. United States (1968) 390 U.S. 39 [ 19 L.Ed.2d 889, 88 S.Ct. 697] (gambling tax and registration requirements); Grosso v. United States (1968) 390 U.S. 62 [ 19 L.Ed.2d 906, 88 S.Ct. 709, 1968-1 C.B. 496] (same); Albertson v. Subversive Activities Control Bd. (1965) 382 U.S. 70 [ 15 L.Ed.2d 165, 86 S.Ct. 194] (registration as member of Communist organization).
Haynes involved a requirement for "persons who have obtained possession of a firearm without complying with the Act's other requirements" (Haynes, supra, 390 U.S. at p. 96) to register the firearm with the Secretary of the Treasury (pursuant to a scheme for the taxation of "weapons used principally by persons engaged in unlawful activities" (id. at pp. 87, 88)), or face criminal prosecution. (Haynes, at p. 89.) As this registration obligation is aimed at persons "immediately threatened by criminal prosecutions" should they comply (id. at p. 96), such that the correlation between registration and a prosecution for the underlying possession could be regarded only "as exceedingly high" (id. at p. 97), the statutory scheme did not come within the exception to the privilege against self-incrimination for regulatory programs of general application (id. at pp. 98-99); therefore, that privilege provided "a full defense" (id. at p. 100).
The act at issue was chapter 53 of title 26 United States Code, popularly called the National Firearms Act. (See 26 U.S.C. § 5849.)
After subsequent amendment, the National Firearms Act required only lawful possessors of the targeted weapons to register and to record any transfer to another party; it prohibited, however, the transferee from registering the weapon, and made it unlawful to possess an unregistered weapon. {United States v. Freed (1971) 401 U.S. 601, 603-604, 605 [ 28 L.Ed.2d 356, 91 S.Ct. 1112].) The revised statute prohibited the use of any information collected for criminal proceedings involving a violation of federal or state law that occurred before or concurrent with registration or transfer. (Id. at pp. 604, 605-606.) This eliminated any concerns about compelled self-incrimination. (Id. at p. 606.)
Applying these precedents, United States v. Resnick (5th Cir. 1974) 488 F.2d 1165 concluded that "the record-keeping provisions of the federal firearms laws" (in this case, the Gun Control Act of 1968 ( 18 U.S.C. § 921 et seq.)) were not "directed at a highly selective group inherently suspect of criminal acts" but instead "regulate[d] an essentially noncriminal activity, the sale of firearms" and therefore did not transgress the privilege against self-incrimination. (Id. at p. 1168; accord, United States v. Flores (9th Cir. 1985) 753 F.2d 1499, 1501-1503 (Flores) [a provision requiring notice to carrier before shipping firearms does not violate privilege against self-incrimination]; United States v. Scherer (7th Cir. 1975) 523 F.2d 371, 375-376 [record obligations do not automatically subject licensees to criminal penalties; thus records are public documents not subject to privilege].)
Lauchli I, involving requirements in the National Firearms Act other than registration, stated that determining whether the petitioner came within the holding of Haynes is "in a sense" a question of fact, and accordingly remanded to the trial court to resolve the question. (Lauchli I, supra, 432 F.2d at pp. 1210-1211.) Lauchli II accepted the trial court's factual findings that manufacturers are not "almost exclusively individuals inherently suspect of criminal activities"; since the provisions at issue were directed both "at law-abiding persons as well as criminally suspect persons," no risk was presented of automatic self-incrimination. (Lauchli II, supra, 481 F.2d at p. 411.) Lauchli II also did not accept a claim that compliance with federal law would make the petitioner subject to prosecution under state law because the federal registry would be available to state officials: "a Class I manufacturer [under the federal law] could be in compliance with Illinois law according to the type of weapon manufactured. . . . Thus whether or not petitioner was violating Illinois law, he would not be inherently suspect of such violation by complying with the [federal act]." (Id. at p. 412.)
Defendant claims that the facts show an effort on the part of federal firearm agents to uncover violations of state firearms law when they inspect the firearms records required under federal law. He therefore contends that he is targeted for prosecution within the meaning of Haynes. He also contends there must be an evidentiary hearing on the extent to which those holding federal firearm importing licenses are at risk of prosecution under state law, citing Lauchli I.
To the contrary, the Gun Control Act of 1968 (Pub.L. No. 90-618, 82 Stat. 1213) compels the keeping of records of transactions that are the legitimate (if disputed) subject of regulation, a requirement that applies generally without inherently subjecting any particular group to the risk of prosecution. As Lauchli II points out in connection with the National Firearms Act, nothing prevents persons subject to the records requirements under federal law from complying with state law, and thus they also could not be considered as targets of prosecution under state law. Since the federal law does not itself target recalcitrant state residents such as defendant who choose to violate state law, it is irrelevant that federal officials use the records to determine if anyone in the general population of federal license holders are in possible violation of state law and report these potential transgressors to state firearm authorities. (Lauchli II, supra, 481 F.2d at p. 412; cf. Flores, supra, 753 F.2d at pp. 1501-1502 [while subject matter of firearms is permeated with criminal statutes, notice requirement does not implicate activity illegal per se and is aimed at public at large, considerations which outweigh possibility that recipients of notice might report illegal shipments to authorities].)
This would be the same circumstance as cooperative efforts between the Internal Revenue Service (IRS) and the Franchise Tax Board (FTB) to determine tax evasion from a comparison of state and federal tax returns. (E.g., Rev. Tax. Code, § 19551 [allowing FTB to release tax information to IRS].)
We also disagree with defendant's contention that these conclusions must be based on empirical evidence rather than abstract analysis. We do not believe Lauchli I compels such a conclusion, other than as an option that particular court chose to exercise in resolving the issue of the interplay of the statutes before it. Moreover, a decision of a lower federal court does not have any binding force as precedent (People v. Bradford (1997) 15 Cal.4th 1229, 1292 [ 65 Cal.Rptr.2d 145, 939 P.2d 259]), and we are not persuaded that an evidentiary hearing is a necessary procedure. (See Flores, supra, 753 F.2d at p. 1500 [whether notice requirement conflicts with privilege against self-incrimination is a question of law reviewed de novo].)
We conclude the search warrant properly incorporated facts derived from the firearms records defendant was compelled to keep under federal law. As a result, the trial court properly denied this ground of his renewed motion to suppress.
III. Federal Preemption
In conjunction with his renewed motion to suppress, defendant also moved in superior court to dismiss one of the charges on the ground of federal preemption and a violation of the foreign commerce clause (U.S. Const., art., I, § 8, cl. 3). The court denied the motion. The defendant contends this was error.
A
The Gun Control Act of 1968 expressly eschews any intent to preempt state regulation of firearms except in the case of a direct and irreconcilable conflict ( 18 U.S.C. § 927), it being the intent of Congress only to strengthen control over interstate and foreign commerce in firearms and to assist intrastate control over them. (See Fresno Rifle and Pistol Club, Inc. v. Van De Kamp (9th Cir. 1992) 965 F.2d 723, 726, fn. 4.) Regulations implementing the act expressly state that a license issued pursuant to it does not confer any right to conduct business or activity contrary to state law. (27 C.F.R. § 478.58 (2006).) Defendant consequently reaches for a more attenuated basis for his preemption claim.
Defendant's license includes this caveat, stating it "does not permit you to receive . . . firearms . . . without first obtaining the proper state . . . license, if any. Please check with your local authorities."
The President of the United States is authorized to maintain a list regulating the import of designated arms, ammunition, and implements of war. ( 22 U.S.C. § 2778.) This list (the "U.S. Munitions Import List") and regulations relating to it appear in part 447 of the Code of Federal Regulations (27 C.F.R. § 447.21 (2006).) The regulations provide that any items on the list which are firearms or ammunition within the meaning of the Gun Control Act of 1968 are subject to the controls on interstate and foreign commerce contained in that act and any person who imports such items must be licensed pursuant to that act. ( 27 C.F.R. § 447.2(a) (2006).)
Defendant perceives an implied declaration of an intent to occupy the field regulating items on the list, because the regulations relating to the list do not include any equivalent express declaration that they are not intended to preempt state regulation. We find the reference to the need to comply with the controls on commerce in the Gun Control Act of 1968 to be sufficient indicia of congressional intent not to preempt state regulation over items on the U.S. Munitions Import List if they are of a type ordinarily coming within the former act. This would be a rational means of avoiding a duplication of regulatory effort. Defendant does not otherwise provide any authority indicating a presidential concern with state encroachment on the power to regulate items on the U.S. Munitions Import List after import. We therefore conclude that prohibiting a resident from owning types of firearms that can otherwise be lawfully imported does not transgress federal authority, which instead condones stricter local controls.
B
Defendant's alternative argument is that a state ban on types of legally imported firearms constitutes an impermissible burden on foreign commerce. He cites a case that invalidated a California tax on instrumentalities used in foreign commerce that would have prevented the federal government from maintaining uniformity in treatment of international trade. (Japan Line, Ltd. v. County of Los Angeles (1979) 441 U.S. 434, 453-454 [ 60 L.Ed.2d 336, 99 S.Ct. 1813].) However, he does not even begin to explain how the principles limiting taxation of foreign commerce apply to the present facts. In light of the inadequate argument, we disregard the claim. {People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10 [ 12 Cal.Rptr.3d 325, 88 P.3d 56].) In any event, where Congress has struck an express balance in its regulation of the interests involved in interstate or foreign commerce, a court no longer has any role in identifying possible burdens. (Merrion v. Jicarilla Apache Tribe (1982) 455 U.S. 130, 154-155 [ 71 L.Ed.2d 21, 102 S.Ct. 894]; Japan Line, supra, 441 U.S. at p. 454 [noting, in context of foreign commerce, that courts must balance competing interests in absence of any expression of congressional intent].) As with the issue of preemption, the regulations implementing the U.S. Munitions Import List indicate clear congressional intent to allow any items that would come within the Gun Control Act of 1968 to be subject to the same commerce principles that allow individual states to regulate them after import. Presumably, once the list establishes the necessary uniform voice in the treatment of munitions from around the world {Japan Line, supra, 441 U.S. at p. 448), it is not of any federal concern that a state declines to be a final destination for them.
C
On several occasions, defendant moved to dismiss the charges against him on the basis of the federal statutory use immunity added to the National Firearms Act. He reasserts this proposition on appeal.
The National Firearms Act ( 26 U.S.C. § 5801 et seq.) taxes and regulates (with various registration and other requirements) the import, manufacture, making, and transfer of machine guns, destructive devices, and certain other firearms. (See 26 U.S.C. § 5845.) The chapter contains a statutory use immunity from criminal prosecution for information obtained "in order to comply with any provision of this chapter [i.e., 26 U.S.C. §§ 5801-5872]" ( 26 U.S.C. § 5848, italics added). By contrast, the duty on defendant to maintain records and to permit warrantless inspections of them stems from the Gun Control Act of 1968. ( 18 U.S.C. § 923(g)(1)(B)(ii).) The use immunity provision of the National Firearms Act has no application in this context, and defendant does not provide any authority for importing its provisions into an entirely different act. The contention is consequently without merit.
IV. Overbreadth
Under both the state and federal charters, a warrant must particularly describe the place to be searched and the items to be seized. ( People v. Smith (1994) 21 Cal.App.4th 942, 948.) The scope of a warrant is sufficiently particular where its language "imposes a meaningful restriction upon the objects to be seized." ( Burrows v. Superior Court (1974) 13 Cal.3d 238, 249.) A generic description of the target of the search is permissible where probable cause exists but it is impossible to be more specific, or where the interpretive principle of ejusdem generis can apply. ( People v. Hepner (1994) 21 Cal.App.4th 761, 778-779; People v. Schilling (1987) 188 Cal.App.3d 1021, 1031.) The conduct of officers executing a search does not vitiate an otherwise lawful warrant; if they exceed its scope, the remedy is exclusion of the items illegally seized, not the totality of the fruits of the search. ( Bradford, supra, 15 Cal.4th at p. 1296.) With these principles in mind, we turn to the defendant's two arguments as they are articulated in his brief. 1. Inclusion of a generic description :
See Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47, 56, fn. 11 (specific items accompanying general phrase limit the understanding of the phrase).
If there is "flagrant" police disregard of the limits in a warrant on the items to be seized, total suppression might be warranted. (Bradford, supra, 15 Cal.4th at p. 1306.) However, where the seizure is of items that "might have . . . some bearing upon the current offenses" (id. at p. 1306), such flagrant disregard is not established (id. at p. 1307).
The People apparently discern additional contentions, but we disregard these as insufficiently identified and argued under this heading. (Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1338, fn. 4.)
The list of items to be sought begins with, "Any contraband and/or material evidence such as," followed by 11 categories. Nine of these are specific weapons designated with serial numbers; the 10th includes "Any indicia to show active participation in illegal importation and/or sales of such weapons, such as but not limited to, bills of lading receipts"; and the 11th includes "Any and all firearms not lawfully possessed . . . and indicia to show identity of the persons involved and show ownership and control of the premises[.]"
Although the defendant recognizes the principle of ejusdem generis, he still insists the 11 categories following the general phrase did not impose meaningful restrictions. This argument flies in the face of nine specifically identified weapons and two categories narrowed as far as can be anticipated in advance. We therefore reject the claim.
2. The manner of execution resulted in a general search :
In the return to the warrant, the executing agents listed about two dozen weapons seized in addition to the specifically identified firearms. At the preliminary hearing, the supervising agent explained the seizure of these items: "We were researching the weapons to see if they were lawfully possessed at the time. Some of them didn't have any history. Many of the handguns were not registered to him. . . . We didn't know if they were lawfully possessed by him. They were not in his A D book. Some of the weapons that he had on him at the time of his detention were not on his concealed weapons permit. So there was a records check and a lawfully possessed . . . check that we had to run" that required them to take all the weapons with them. He also noted that there was a search of two unlocked safes because they could have held illegal handguns. One of his subordinates also noted that legal firearms could provide indicia of ownership of other firearms that were not registered. He could not always recall why he seized a particular firearm, only that he was following instructions in seizing them.
The defendant contends that the indiscriminate seizure of all firearms found on the premises (together with the testimony of the subordinate that he was not given any instructions that meaningfully limited his quest for firearms) converted the search into a constitutionally impermissible general rummage through his premises.
These other firearms are not the basis for any of the charges against the defendant. They were seized pursuant to the authority of a warrant that could not in advance give any further guidance as to what might be found, or to distinguish between the weapons lawfully possessed and those unlawfully possessed. The conduct in seizing other weapons pursuant to the warrant that might have a bearing on the offenses under investigation did not transmute the process into a general search subjecting all the fruits of the warrant to suppression. We therefore reject this claim as well.
V. Inadequate Consideration of Renewed Motion
The defendant contends that the superior court denied the renewed motion to suppress without a full review of the record and without providing him adequate opportunity to argue the motion. Our plenary review of the issue cures any possible prejudice even if we were to agree with his claim. Therefore, we reject his assertion that he is entitled to have the judgment reversed on this basis.
The defendant had filed a writ in this court that challenged both the failure to allow him to introduce additional evidence and the denial of the renewed motion (Wilmshurst v. Superior Court, C049073), which we summarily denied. This disposition does not have any preclusive effect on this appeal. (People v. Medina (1972) 6 Cal.3d 484, 492.) The defendant does not renew the former argument in this appeal, however. Although the People have requested us to take judicial notice of exhibits to the writ, they are unnecessary for our resolution of the present appeal, so we shall deny the motion.
VI. Statements Made During the Search
During the course of the trial, the court held a hearing out of the presence of the jury on the defendant's motion to suppress his responses to questions during the search of his outbuilding. He contended this violated the dictates of Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694] ( Miranda) because he did not received the advisements required under Miranda. The parties focused the trial court on the following facts.
Accompanied by the local police chief, the firearms agents arrived at the defendant's car dealership. The defendant was drinking coffee. They went into his private office to tell him that they had a search warrant for his person, his place of business, and his residence. The defendant indicated he was armed. The agents removed a loaded gun from his front pants pocket and secured another gun in the bookshelf behind him.
They gave him a copy of the warrant. He began to read through its entirety, although the agents told him that he could read it at the residence because they were concerned that two employees of the dealership might notify someone at the residence to dispose of evidence.
They told him that if he continued to delay their execution of the warrant, this could be considered interference with the performance of their duties under section 148. After perusing a copy of the Penal Code that he kept handy, he said he was ready to go with them. The agents would have been willing to proceed in his absence, and did not compel him to go with them. He rode in their vehicle without handcuffs.
During the course of the search, the police chief and a couple of agents kept the defendant under observation as they searched the second-floor office area. He sat at his desk after they had secured the area. They had given him the opportunity to leave, but he insisted on staying. They did not place him under arrest at any time.
After a while, the defendant came downstairs to get a glass of water from the living quarters, with an agent accompanying him to make sure that he did not interfere. At this point, an agent asked him a question about a machine gun that they had found. The defendant made another spontaneous comment, this time about the machine gun, before returning upstairs.
The court denied the motion to suppress. It found that the defendant had accompanied the agents to his home voluntarily, and that he had been free to go at any point during the search but instead chose to stay, in which case he was properly restricted to a designated area.
The advisements required under Miranda must precede the questioning of an individual only in "custodial" circumstances, which include a formal arrest or an equivalent deprivation of freedom of movement. ( People v. Ochoa (1998) 19 Cal.4th 353, 401.) This is assessed from the perspective of the reasonable individual. ( Id. at pp. 401-402.)
The authorities may detain an individual for investigation without the need to comply with Miranda unless the person's freedom of action is curtailed to the degree associated with a formal arrest. ( Berkemer v. McCarty (1984) 468 U.S. 420, 439-441 [ 82 L.Ed.2d 317].) It is logical to apply this principle by analogy to questioning of occupants detained during the execution of a search warrant (as permitted under Michigan v. Summers (1981) 452 U.S. 692, 705 [ 69 L.Ed.2d 340]).
The defendant contends he was the subject of significant curtailment on his freedom of action. The facts do not support his claim. He was free to stay at the dealership, or to leave the outbuilding during the search at any time. He claims that no one ever told him that he was free to leave, but the trial court credited testimony to the contrary and we are not entitled to overturn this credibility determination. We therefore reject this argument.
VII. Jury Instruction on the Firearm License
At the request of the prosecution and over the objection of the defense, the trial court specially instructed the jury in terms of the federal regulation we quoted above that a federal firearm importer's license does not permit the holder to engage in any conduct contrary to state law. On appeal, the defendant contends this was error, based on his earlier arguments that he was not subject to state law. As we have rejected his earlier arguments, we reject this contention as well.
VIII. Jury Instruction on the Second Amendment
See footnote, ante, page 621.
The defendant contends that the trial court erred in denying his request for an instruction that he had an individual right under the Second Amendment to the federal Constitution to possess certain firearms. We disagree.
The trial court is required to instruct only on general principles of law that are necessary to the jury's understanding of the case. ( People v. Saille (1991) 54 Cal.3d 1103, 1120.) Instructions on specific points or special theories that may be applicable to a defendant's particular case, referred to as "`pinpoint'" instructions, must be properly requested by the defendant. ( Id. at p. 1119.) Defendant's proposed jury instruction regarding his Second Amendment right was a "pinpoint" instruction.
Section 1127 states that upon receiving a request for a jury instruction by either party, "[i]f the court thinks [the instruction] correct and pertinent, it must be given; if not, it must be refused." The trial court properly refused defendant's proposed instruction because the instruction was neither correct nor pertinent.
The defendant requested the following instruction regarding the Second Amendment right to keep and bear arms:
"The Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense.
"The Second Amendment specifically provides `. . . the right of the people to keep and bear arms shall not be infringed.'
"A citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment.
"Thus, if you find that the firearms offered as evidence in this action would be classified as military style or military firearms then the firearms offered in evidence are not unlawful under the Second Amendment of the Constitution of the United States."
Defendant contends that the proffered jury instruction was based on the United States Supreme Court's decision in United States v. Miller (1939) 307 U.S. 174 [ 83 L.Ed. 1206] ( Miller). However, defendant's instruction mischaracterizes the holding in Miller in two respects. The instruction states that the Second Amendment right to keep and bear arms is, first, an individual right and, second, an absolute right. The instruction was properly refused because neither statement accurately characterizes Miller's holding or the law.
In Miller, the Supreme Court rejected a Second Amendment challenge to an indictment under federal law for the allegedly unlawful interstate transportation of an unregistered, short-barreled shotgun. ( 307 U.S. at pp. 175-178, 183.) The Miller court held that the Second Amendment does not guarantee the right to keep and bear a weapon that bears no "reasonable relationship to the preservation or efficiency of a well[-]regulated militia. ( Id. at p. 178.) Miller concluded that the Second Amendment must be interpreted and applied according to its purpose of rendering effective the militia. ( Ibid.) The Miller court did not opine whether the Second Amendment right is an individual or a collective right, and the Court has not given further instruction on this question since Miller.
Defendant's proposed instruction states that "[t]he Second Amendment provides that every person may keep firearms that could be used to contribute to the common defense" and that "[a] citizen has a Second Amendment right to keep arms that could be classified as ordinary military equipment." (Italics added.) Defendant's instruction erroneously makes no reference to the concept of a well-regulated militia, which was central to the Supreme Court's holding in Miller.
Defendant's proposed instruction also reaches the incorrect conclusion that every person's right to keep and bear arms is absolute so long as the arms can be classified as military style or military firearms. To state such an absurd right is to refute it. The proposed instruction states that all weapons that can be classified as military style or military arms are lawful under the Second Amendment. Unsurprisingly, no court has held that the Second Amendment right to keep and bear arms is absolute in this way.
The United States Supreme Court has repeatedly upheld the constitutionality of reasonable restrictions on the right to keep and bear arms. For example, in Presser v. Illinois (1886) 116 U.S. 252 [ 29 L.Ed. 615], the Court upheld an Illinois statute prohibiting citizens, apart from organized Illinois volunteer militia, from parading and drilling with arms. In Robertson v. Baldwin (1897) 165 U.S. 275 [ 41 L.Ed. 715], the Court stated that the Bill of Rights are "subject to certain well-recognized exceptions arising from the necessities of the case" ( id. at p. 281) "the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons." ( Id. at pp. 281-282.)
More recently, in Lewis v. United States (1980) 445 U.S. 55 [ 63 L.Ed.2d 198], the Supreme Court upheld a provision of the Omnibus Crime Control and Safe Streets Act of 1968 prohibiting a felon from possessing a firearm. Although the Court's analysis centered on the Due Process Clause of the Fifth Amendment, the Court, citing Miller, noted that "[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." ( Lewis, supra, 445 U.S. at p. 65, fn. 8.) The Court also cited three federal circuit court decisions, noting that all three had concluded that the provision at issue did not violate the Second Amendment. ( Ibid.)
After Miller, only the Fifth Circuit, in United States v. Emerson (5th Cir. 2001) 270 F.3d 203 ( Emerson), has adopted the interpretation of the Second Amendment that the right to keep and bear arms is an individual right. Even under this interpretation, the Fifth Circuit has conceded that the individual right remains subject to "any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." ( Emerson, supra, 270 F.3d at p. 261.)
In Emerson, the Fifth Circuit upheld an indictment charging the defendant with violating the Gun Control Act of 1968 for possessing a firearm while subject to a restraining order. ( Emerson, supra, 270 F.3d at pp. 211-212, 265.) The court concluded that the statute was a reasonable restriction on an individual's Second Amendment right. ( Id. at pp. 262-263.) The Fifth Circuit again upheld an arms regulation statute in United States v. Everist (5th Cir. 2004) 368 F.3d 517, and held that a felon firearm possession statute did not violate the Second Amendment because the statute was "a limited and narrowly tailored exception to the freedom to possess firearms." ( Everist, supra, 368 F.3d at p. 519.) Thus, defendant's proposed instruction incorrectly concludes that the Second Amendment right to keep and bear certain arms is an absolute right.
Although defendant contends that the proposed instruction was based on Miller, we find that the instruction was an improper characterization of Miller's holding and the law. The trial court properly denied the requested instruction. (§§ 1127.)
DISPOSITION
The People's motion for judicial notice is denied. The judgment is affirmed.Hull, J., and Robie, J., concurred.
A petition for a rehearing was denied February 6, 2007, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied April 18, 2007, S150379. George, C. J., did not participate therein.