People v. Delacy

192 Cal. App. 4th 1481, 122 Cal. Rptr. 3d 216, 2011 Cal. App. LEXIS 216

Opinions

Opinion

MARGULEES, Acting P. J.

Defendant Rick Charles Delacy was convicted of four counts of unlawful possession of firearms and one count of unlawful possession of ammunition. (Pen. Code,¹ §§ 12021, subd. (c)(1), 12316, subd. (b)(1).) He challenges the constitutionality of section 12021, subdivision (c)(1), which prohibits the possession of firearms by persons convicted of specified misdemeanors, contending it violates the Second Amendment right to bear arms and equal protection. He also argues his conviction under section 12316, subdivision (b)(1) must be reversed because the trial court declined to instruct the jury on a mistake of fact defense and failed to answer adequately a jury question as to the mental state element required for conviction. Finally, defendant claims certain fees and fines should be stricken from the trial court’s sentencing minute order because the trial court did not orally impose them at the sentencing hearing. We affirm.

I. BACKGROUND

Defendant’s crimes were charged in two informations, arising from two separate incidents. In case No. CR142103 (the firearm case), defendant was charged with four felony counts of unlawful firearm possession. (§ 12021, subd. (c)(1).) The amended information alleged defendant’s possession of firearms was unlawful because he had been convicted within the past 10 years of misdemeanor battery under section 242, one of the misdemeanors enumerated in section 12021, subdivision (c)(1).²

In case No. CR142660 (the ammunition case), defendant was charged with one felony count of unlawful possession of ammunition (§ 12316, subd. (b)(1))³ and one count of receiving stolen property (§ 496, subd. (a)). The unlawful possession charge contained allegations that defendant’s possession of ammunition was unlawful because of his prior conviction and that defendant was on bail or on his own recognizance in case No. CR142103 at the time of the offense.

The firearms and ammunition were discovered during two probation searches of defendant’s home in April and October 2008. During the first search, officers found four firearms, including a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. When confronted, defendant told the officers, “There ain’t nothing wrong with me having guns.” Defendant later testified he possessed the guns for hunting. The second search uncovered shotgun shells in a camouflage bag in defendant’s bedroom closet and in two storage tubs in the garage. Defendant told deputies the shells were for hunting.

Prior to trial in the firearm case, defendant' moved to dismiss the information on the ground section 12021, subdivision (c)(1) violated the Second Amendment right to bear arms, as interpreted in the United. States Supreme Court’s decision in District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637, 128 S.Ct. 2783] (Heller). The trial court denied the motion, relying on People v. Flores (2008) 169 Cal.App.4th 568 [86 Cal.Rptr.3d 804] (Flores), in which the court rejected a post-Heller challenge to section 12021, subdivision (c)(1).

The two cases were tried separately, beginning with a jury trial in the ammunition case in January 2009. The jury found defendant guilty of unlawful possession of ammunition and found true the special allegation defendant committed the offense while on bail or on his own recognizance in case No. CR142103. He was acquitted of the receiving stolen property charge. In March 2009, after the parties waived jury trial in the firearm case, the court found defendant guilty on the four charges of unlawful firearm possession. At a consolidated sentencing hearing, imposition of sentence was suspended, and defendant was placed on three years’ probation.

II. DISCUSSION

A. Heller

Defendant renews his Second Amendment argument, contending section 12021, subdivision (c)(1) is unconstitutional under Heller.

The Second Amendment to the United States Constitution provides: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” In Heller, the Supreme Court held the Second Amendment protects an individual right “to possess and carry weapons in case of confrontation,” unconnected with service in a militia. (Heller, supra, 554 U.S. at p. 592 [128 S.Ct. at p. 2797]; see also id. at pp. 627-630, 634—636 [128 S.Ct. at pp. 2817-2818, 2821-2822].) The court struck down a District of Columbia law effectively banning the possession of handguns in the home. (Id. at pp. 628-632 [128 S.Ct. at pp. 2817-2819].)

More recently, in McDonald v. Chicago (2010) 561 U.S._[177 L.Ed.2d 894, 130 S.Ct. 3020] (McDonald), the court held the Second Amendment right recognized in Heller is “fully applicable to the States.” (Id. at p._ [130 S.Ct. atp. 3026] (plur. opn. of Alito, J.); see id. at pp._,_[130 S.Ct. at pp. 3058, 3088] (conc. opn. of Thomas, J.).) A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is “fundamental” to the American “scheme of ordered liberty” and is therefore incorporated in the due process clause of the Fourteenth Amendment. (McDonald, at pp. _, _ [130 S.Ct. at pp. 3036, 3050] (plur. opn. of Alito, J.).) In a concurring opinion, Justice Thomas agreed with the plurality’s characterization of the Second Amendment right as “fundamental.” (561 U.S. at p._[130 S.Ct. at p. 3059] (conc. opn. of Thomas, J.).)

Although it struck down the District of Columbia handguns ban, Heller recognized and affirmed certain traditional limitations on the right to bear arms. As the court noted, the Second Amendment does not grant “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Heller, supra, 554 U.S. at p. 626 [128 S.Ct. at p. 2816].) Heller identified an expressly nonexclusive list of “presumptively lawful regulatory measures,” stating “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions nd qualifications on the commercial sale of arms.” (Id. at pp. 626-627 & fn. 26 [128 S.Ct. at pp. 2816-2817 & fn. 26]; accord, McDonald, supra, 561 U.S. at p._[130 S.Ct. at p. 3047] (plur. opn. of Alito, J.) [reiterating these categories of permissible firearm regulations].) In so doing, Heller recognized that some individuals, presumably including felons and the mentally ill, may be “disqualified” from exercising Second Amendment rights. (Heller, at pp. 626-627, 635 [128 S.Ct. at pp. 2816-2817, 2822] [“Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”].)

B. The Second Amendment Claim

The Flores court relied on Heller's express authorization of statutes disqualifying felons from exercising Second Amendment rights to uphold the constitutionality of section 12021, subdivision (c). Although recognizing the defendant in Flores had been convicted of a misdemeanor, rather than a felony, the court held, “We find this [distinction] unconvincing. If, as Heller emphasizes, the Second Amendment permits the government to proscribe the possession of a firearm by any felon (including nonviolent offenders), we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by ‘means of force likely to produce great bodily injury.’ [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses. [Citations.] Consequently, we do not read Heller to undermine the constitutionality of Flores’s section 12031 [sic: 12021] conviction.” (Flores, supra, 169 Cal.App.4th at p. 575.)

Defendant argues we should apply strict constitutional scrutiny to strike down section 12021, subdivision (c)(1), contrary to the approach of Flores.⁴ In holding the District of Columbia (D.C.) handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” (Heller, supra, 554 U.S. at pp. 628-629 [128 S.Ct. at pp. 2817-2818], fn. omitted.) The court did, however, imply that some elevated level of scrutiny was appropriate by rejecting the “rational-basis” test as too lenient. As the court reasoned in a footnote, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” (Id. at p. 628, fn. 27 [128 S.Ct. at pp. 2817-2818, fn. 27].)

For purposes of constitutional analysis under Heller, however, there is a significant difference between the D.C. handgun ban and section 12021. The D.C. statute was one of general application that did not fit within the traditional regulations described by Heller as “presumptively lawful.” (Heller, supra, 554 U.S. at p. 627, fn. 26 [128 S.Ct. at pp. 2816-2817, fn. 26].) In contrast, as Flores held, section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction expressly listed by Heller as untouched by its holding. Relying on this reasoning, both California and federal decisions have upheld the type of “presumptively lawful” regulations identified in Heller, including prohibitions on firearm possession by certain “disqualified” persons, without applying constitutional scrutiny that balances the objectives of the statute against the means used to accomplish those ends. In U.S. v. Vongxay (9th Cir. 2010) 594 F.3d 1111 (Vongxay), for example, the court determined that because Heller held that prohibitions on possession of weapons by felons are presumptively lawful, “felons are categorically different from the individuals who have a fundamental right to bear arms . . . .” (Vongxay, at p. 1115, fn. omitted.) Accordingly, the court upheld the federal felon-in-possession statute (18 U.S.C. § 922(g)(1)), against a Second Amendment challenge without applying means-end scrutiny. (Vongxay, at p. 1115.) Earlier federal decisions had used the same rationale in upholding felon- and misdemeanant-in-possession statutes, also without applying means-end scrutiny. (E.g., U.S. v. White (11th Cir. 2010) 593 F.3d 1199, 1205-1206; U.S. v. Rene E. (1st Cir. 2009) 583 F.3d 8, 12-16 [possession by minor]; In re U.S. (10th Cir. 2009) 578 F.3d 1195, 1200; U.S. v. McCane (10th Cir. 2009) 573 F.3d 1037, 1047; U.S. v. Anderson (5th Cir. 2009) 559 F.3d 348, 352.)

In People v. Yarbrough (2008) 169 Cal.App.4th 303, 312-314 [86 Cal.Rptr.3d 674] (Yarbrough), this court rejected a Second Amendment challenge to the prohibition on carrying concealed firearms in section 12025, subdivision (a)(2), based on Heller’s approval of certain traditional regulations. We stated: “Treating as criminal defendant’s concealment of a firearm under his clothing on a residential driveway that was not closed off from the public and was populated with temporary occupants falls within the ‘historical tradition’ of prohibiting the carrying of dangerous weapons in publicly sensitive places.” (Yarbrough, at p. 314.) This was also the implicit reasoning of Flores, which did not apply means-end scrutiny in upholding section 12021, subdivision (c)(1). (Flores, supra, 169 Cal.App.4th at pp. 574-576; see also People v. Villa (2009) 178 Cal.App.4th 443, 445-448 [100 Cal.Rptr.3d 463]; People v. James (2009) 174 Cal.App.4th 662, 674-677 [94 Cal.Rptr.3d 576].)

The Third Circuit Court of Appeals analyzed the issue at more length in evaluating title 18 United States Code section 922(k), which prohibits the possession of weapons with obliterated serial numbers. (U.S. v. Marzzarella (3d Cir. 2010) 614 F.3d 85 (Marzzarella).) Analyzing Heller’s intent in holding certain categories of statutes unaffected by the Second Amendment, Marzzarella noted there were two possible explanations. Heller could have meant that the categories are presumptively lawful either “because they regulate conduct outside the scope of the Second Amendment” or “because they pass muster under any standard of scrutiny.” (Marzzarella, at p. 91.) Settling on the first alternative, the court concluded the “better reading” is “that these longstanding limitations are exceptions to the right to bear arms.” (Ibid., fn. omitted.) Applying this reasoning, the court held, “The endorsement [in Heller] of prohibitions as opposed to regulations, whose validity would turn on the presence or absence of certain circumstances, suggests felons and the mentally ill are disqualified from exercising their Second Amendment rights.” (Id. at pp. 91-92, fn. omitted.)⁵

The lower appellate courts were therefore generally unanimous in rejecting the application of means-end scrutiny to statutes disqualifying felons and certain misdemeanants from weapons possession until an en banc decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614 F.3d 638 (Skoien) and, more recently, U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 (Chester), which follows Skoien. In Skoien, the court considered the constitutionality under Heller of title 18 United States Code section 922(g)(9), a statute prohibiting persons convicted of misdemeanor domestic violence from possessing weapons, framing the question as “whether Congress is entitled to adopt categorical disqualifications [on weapons possession].” (Skoien, at p. 639.) The court rejected reliance on Heller’s declaration of presumptive validity for long-standing prohibitions, holding this was “precautionary language,” intended only to “warn readers not to treat Heller as containing broader holdings than the Court set out to establish.” (Skoien, at p. 640.) Following its own analytical route (id. at pp. 641-643), Skoien concluded that it was possible for a “categorical limit on the possession of firearms” to be constitutional (id. at p. 641). On the basis of footnote 27 of Heller, however, the court held that a valid categorical limit must satisfy more than a rational basis test. (Skoien, at p. 641.) Applying what it characterized as “some form of strong showing (‘intermediate scrutiny,’ many opinions say),” the court upheld the statute after finding it “substantially related to an important governmental objective.” (Id. at p. 641.)

We conclude the Skoien approach gives too little weight to the “presumptively lawful” language of Heller. While Skoien is certainly correct the court intended to make clear through this language that its decision was limited in scope, the court was also intent on making clear what those limits are. There is no ambiguity in the language; Heller states, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . .” or other types of traditional weapons regulation.⁶ (Heller, supra, 554 U.S. at pp. 626-627 [128 S.Ct. at pp. 2816-2817], italics added.) As Marzzarella held, Heller intended by this language to put certain recognized prohibitions outside the ambit of the Second Amendment right it had delineated. (Marzzarella, supra, 614 F.3d at p. 91.) Emphasizing these limits, Marzzarella described the right outlined in Heller as “the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home.” (Marzzarella, at p. 92, fn. omitted, italics added.) Stated otherwise, the right announced in Heller does not render invalid otherwise lawful statutes of the types enumerated. Further, because the court’s enumeration of traditional regulations was expressly noted to be nonexclusive, other, similar prohibitions are unaffected as well, as Flores held.

The limitations of the Skoien approach were rapidly made clear by a subsequent decision of the same court. In U.S. v. Williams (7th Cir. 2010) 616 F.3d 685 (Williams), the court considered the constitutionality of the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)). Rather than relying on the safe harbor for laws banning possession by felons in Heller, the court applied the intermediate scrutiny analysis it had previously adopted in Skoien. (Williams, at pp. 692-693.) Although the statute readily survived a facial challenge under that standard, the court concluded Heller's reference to traditional regulations as only “ ‘presumptively lawful’ ” means such statutes are also subject to felon-by-felon “as applied” challenges. (Williams, at p. 692.) It therefore considered whether the defendant’s prior felony was such as to justify a prohibition on his personal possession of firearms. While Williams upheld application of the statute because the defendant had been convicted of a “violent felony” (id. at p. 694), its approach raises the possibility that the federal felon-in-possession statute is invalid in the Seventh Circuit to the extent it prohibits persons convicted of nonviolent felonies from possessing weapons. (See Williams, at p. 693 [“we recognize that [18 U.S.C.] § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent . . .”].) The language of Heller gives no hint of such flexibility.

We do not agree that Heller intended to open felon-in-possession prohibitions and similar categorical weapons possession bans to constitutional means-end scrutiny. On the contrary, following virtually all other federal and California appellate courts, we read Heller’s “presumptively lawful” language to do just the opposite. Accordingly, if section 12021, subdivision (c)(1) falls within the “presumptively lawful” regulations of Heller, as Flores held, it is immune from means-end scrutiny.

As discussed above, Flores found subdivision (c)(1) of section 12021 to be presumptively lawful under Heller because “we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by ‘means of force likely to produce great bodily injury.’ [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses.” (Flores, supra, 169 Cal.App.4th at p. 575; see similarly In re U.S., supra, 578 F.3d at p. 1200 [Heller categories also include those convicted of misdemeanor domestic violence because the conviction demonstrates a propensity for use of physical violence against others]; U.S. v. White, supra, 593 F.3d at p. 1206 [same].) Defendant distinguishes Flores, contending the portion of subdivision (c)(1) banning persons convicted of misdemeanor battery from possessing weapons is not within the Heller exemption because misdemeanor battery requires only a “simple touching” and “does not necessarily entail violence,” in contrast to the predicate assault in Flores.

Footnotes

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7 We disagree with the characterization of battery as a nonviolent offense. Battery is “any willful and unlawful use of force or violence upon the person of another.” (§ 242.) As the trial court noted in denying defendant’s motion to dismiss, battery, like assault, “presents a threat to public safety.” As Flores held, if the Second Amendment permits the government to prohibit all felons (including nonviolent offenders) from possessing firearms, there is no reason the government cannot also prohibit firearm possession by misdemeanants who have shown a propensity to commit violence against others.⁸

Finally, contrary to defendant’s argument, we do not find any inconsistency or irrationality in the California rule permitting a person who is generally prohibited from possessing a firearm to use one in self-defense. (See People v. King (1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d ] (King).) As defendant acknowledges, the King rule does not permit such a disqualified person to possess a firearm in anticipation of using it one day in self-defense. (See People v. McClindon (1980) 114 Cal.App.3d 336, 339-340 [170 Cal.Rptr. 492].) Instead, King only recognized “when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.” (King, at p. 24.) This limited exception to the general rule prohibiting firearm possession by persons convicted of certain crimes does not render section 12021, subdivision (c)(1) irrational or otherwise unconstitutional, nor does it bolster defendant’s efforts to bring himself within the holding in Heller. As discussed above, Heller protects a right to keep and bear arms for self-defense in the home for persons who are not otherwise disqualified from possessing firearms. (See Heller, supra, 554 U.S. at pp. 627 & fn. 26, 635-636 [128 S.Ct. at pp. 2816-2817 & fn. 26, 2822].) Under section 12021, subdivision (c)(1), defendant is disqualified from exercising Second Amendment rights.

C. Equal Protection

Defendant next argues section 12021, subdivision (c)(1) violates equal protection because it prohibits firearm possession by persons convicted of the California misdemeanors specified in the statute, but not by persons convicted of similar offenses in other jurisdictions. In contrast to this subdivision, the provision of section 12021 barring firearm possession by convicted felons, subdivision (a)(1), applies to any person convicted of a felony “under the laws of the United States, the State of California, or any other state, government, or country . . . .” Defendant argues “[t]here is no reason to believe that persons convicted of the specified California misdemeanors are any more likely to commit anti-social acts with firearms than persons who have committed equivalent offenses out of state.”

We note defendant did not raise an equal protection challenge in the trial court. His motion to dismiss the firearm charges raised only a Second Amendment challenge to section 12021, subdivision (c)(1). The Attorney General, however, does not argue defendant forfeited his equal protection argument. We conclude defendant did not forfeit this argument, and we will consider it on the merits, because “the issue is still one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts—a task that is suited to the role of an appellate court. [Citations.] We also confront the issue to avert any claim of inadequate assistance of counsel.” (Yarbrough, supra, 169 Cal.App.4th at pp. 310-311.)

“The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.] However, neither clause [of the United States or California Constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons. The necessary quantum of such reasons varies, depending on the nature of the classification.” (In re Evans (1996) 49 Cal.App.4th 1263, 1270 [57 Cal.Rptr.2d 314] (Evans).) “In considering whether state legislation violates the Equal Protection Clause . . . , we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin, [citation] and classifications affecting fundamental rights [citation], are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.” (Clark v. Jeter (1988) 486 U.S. 456, 461 [100 L.Ed.2d 465, 108 S.Ct. 1910].) “[M]ost legislation challenged under the equal protection clause is evaluated merely for the existence of a ‘rational basis’ supporting its enactment. [Citations.] Under the latter analysis, the question is whether the classification bears a fair relationship to a legitimate public purpose.” (Evans, at p. 1270; see similarly People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14 [104 Cal.Rptr.3d 427, 223 P.3d 566].)

In the absence of a suspect class or a fundamental right, defendant’s equal protection challenge to section 12021 would be evaluated under the rational basis test. In Evans, for example, the court considered an equal protection challenge to the provisions of section 12021, subdivision (c)(1) permitting certain individuals to seek relief from the statute’s prohibition on firearm possession. (Evans, supra, 49 Cal.App.4th at pp. 1269-1274.) In holding the classification should be analyzed under the rational basis test, the Evans court explained strict scrutiny is inapplicable because “[t]he classification of misdemeanants does not involve a typically suspect classification such as race or sex” and “[t]he private right to bear arms is not a ‘fundamental’ right” under the Second Amendment. (Evans, at p. 1270.)

The United States Supreme Court’s recent Second Amendment jurisprudence has called into question the latter conclusion. Following its determination in Heller that the right to bear arms is a private right guaranteed by the Second Amendment (Heller, supra, 554 U.S. at p. 591 [128 S.Ct. at p. 2797]), the court held in McDonald that this right is “fundamental” for purposes of incorporation in the due process clause of the Fourteenth Amendment. (See McDonald, supra, 561 U.S. at pp. _,_ [130 S.Ct. at pp. 3036, 3050] (plur. opn. of Alito, J.); see also id. at p._[130 S.Ct. at p. 3059] (conc. opn. of Thomas, J.).) Because section 12021, subdivision (c)(1) deprives certain misdemeanants of this right for a period of 10 years, it could be argued that the statute “affects” a fundamental right and, for that reason, is subject to strict scrutiny under traditional doctrine. (E.g., Clark v. Jeter, supra, 486 U.S. at p. 461.)

This issue was addressed recently by the Ninth Circuit in Vongxay, supra, 594 F.3d 1111, in which the defendant raised an equal protection challenge to the federal felon-in-possession statute. (Id. at p. 1118.) The court rejected the defendant’s argument that strict scrutiny should apply, reasoning the statute did not affect a fundamental right because the defendant belonged to the class of persons who may be disqualified from exercising Second Amendment rights under Heller. As the Ninth Circuit explained: “[T]he Supreme Court has purposefully differentiated the right to bear arms generally from the more limited right held by felons. [Citation.] Therefore, whatever standard of review the Court implicitly applied to Heller’s right to keep arms in his home is inapplicable to Vongxay, a felon who was explicitly excluded from Heller’s holding.” (Vongxay, at p. 1118.) The Vongxay court accordingly applied pre-Heller case law, specifically Lewis v. United States (1980) 445 U.S. 55 [63 L.Ed.2d 198, 100 S.Ct. 915], that had established rational basis as the standard of scrutiny for equal protection challenges relating to the right to bear arms. (Vongxay, at pp. 1118-1119; see similarly Warden v. Nickels (W.D.Wn. 2010) 697 F.Supp.2d 1221, 1226-1227 [applying rational basis test to equal protection claim regarding weapons possession].) We find the Vongxay analysis persuasive and follow it here. Because misdemeanants subject to section 12021, subdivision (c)(1) are disqualified to the same extent as felons from exercising Second Amendment rights (Flores, supra, 169 Cal.App.4th at p. 575), they can claim no “fundamental” right that would invoke elevated scrutiny under the equal protection clause. As a result, the statute is subject only to a rational basis analysis.

We find no basis for applying intermediate scrutiny under the authority of Skoien and Chester, the primary authorities cited by the dissent. As discussed above, Skoien rejected, wrongly in our view, any consideration of the presumption of lawfulness afforded certain traditional regulations by Heller. The dissent fails to mention Heller’s singling out of certain traditional regulations as presumptively lawful, let alone to explain why section 12021, subdivision (c)(1) does not fall within those categories.⁹ Yet even if we accept Skoien on its own terms, it would not require the application of intermediate scrutiny in the context of an equal protection challenge, as the dissent concludes. Skoien and Chester featured Second Amendment challenges to the federal weapons possession ban for persons convicted of misdemeanor domestic violence. The defendants in Skoien and Chester raised no claims under the Fifth or Fourteenth Amendments, which contain the guarantee of equal protection. Had equal protection claims been raised, these courts may well have applied a different level of scrutiny than they applied to the Second Amendment claims, since the respective claims arise under different constitutional provisions and are subject to different governing authority. In any event, because no equal protection claim was made in Skoien and Chester, these decisions provide no authority for applying elevated scrutiny to defendant’s equal protection claim here.¹⁰

Having settled the level of scrutiny, we turn to the substance of the argument. Under the rational basis test, the question is whether the Legislature’s differing treatment of similarly situated groups bears a fair relationship to a legitimate public purpose. (See Evans, supra, 49 Cal.App.4th at p. 1270.) We find two separate rational bases for the failure of section 12021, subdivision (c)(1) to include out-of-state misdemeanants. Critical to both these justifications is the widely varying nature of misdemeanor crimes. It is no accident that section 12021 precludes all felons, regardless of the nature or jurisdiction of their felony, from possessing guns (id., subd. (a)(1)), but does not similarly preclude all misdemeanants. Instead, subdivision (c)(1) carefully enumerates the particular misdemeanors that disqualify a person from weapons possession. The Legislature has made a judgment that all crimes serious enough to be classified as felonies are serious enough to justify depriving persons committing those crimes of the right to bear arms. Conversely, the careful discrimination among misdemeanor crimes in subdivision (c)(1) reflects the Legislature’s recognition that not all misdemeanors, which vary widely in substance and seriousness, suggest that the violator cannot responsibly possess weapons.

This diversity has two consequences. First, it raises the concern that other jurisdictions might not treat misdemeanor crimes, or at least some misdemeanor crimes, with the same level of due process afforded in California. California law restricts possession of firearms by persons convicted of the misdemeanors enumerated in section 12021, subdivision (c)(1) only after providing representation by counsel (see Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 527 [102 Cal.Rptr. 45] [defendant charged with any misdemeanor has right to counsel under Cal. Const.]) and notice of the weapons restriction (§ 12021, subd. (d)(2)). Such protections, particularly the latter requirement, may not be afforded in other jurisdictions.¹¹

Second, the diversity makes identifying parallel misdemeanors in other states a daunting task. Enumerating the misdemeanors subject to the section 12021 ban for each state individually, as subdivision (c)(1) does for California, would be difficult, if not impossible, because it requires the careful parsing of the criminal codes of 49 other states. The Legislature cannot be required to scrutinize each state’s laws to determine whether misdemeanors exist that are identical to the California misdemeanors listed in subdivision (c)(1). In theory, the Legislature could have identified general classes of out-of-state misdemeanors subject to the ban. By identifying individual misdemeanors in subdivision (c)(1), however, the Legislature has already indicated that listing general classes of misdemeanors is not a satisfactory approach. If that were sufficient, the Legislature could have listed general classes for California misdemeanors rather than specifically enumerating them. Further, even if the Legislature could identify general categories of out-of-state misdemeanors, the elements of the offenses may differ among the states, making it difficult for an offender to know whether a particular out-of-state misdemeanor is included in a category subject to the ban, and thereby raising issues of due process. (See U.S. v. Moore (7th Cir. 2008) 543 F.3d 891, 897.) In short, as a practical matter it would be difficult for the Legislature to extend section 12021, subdivision (c)(1) to misdemeanor crimes committed in other states in a fair and equitable manner.¹²

Both of these concerns, the protection of a defendant’s due process rights and the difficulty of crafting effective legislation, constitute legitimate governmental concerns that are sufficient to justify the Legislature’s decision not to include out-of-state misdemeanants under section 12021. Accordingly, the statute does not deny defendant equal protection of the laws by excluding such persons.¹³

In this connection, we note the United States Supreme Court has upheld federal firearm disability law sentencing enhancements despite recognizing they can result in different enhancements for similar circumstances, depending upon the state of the defendant’s original conviction. In Logan v. United States (2007) 552 U.S. 23 [169 L.Ed.2d 432, 128 S.Ct. 475], the defendant argued his sentence enhancement under section 924(e)(1) of title 18 of the United States Code was invalid because his prior conviction would have been disregarded had he been convicted in certain other states. (Logan, at p. 26.) After reviewing the statutory history, the court upheld the enhancement, concluding Congress had a valid reason for structuring the statute in the manner it selected. (Id. at pp. 35-36.) In the same way, the different consequences from in-state and out-of-state misdemeanor convictions under section 12021, subdivision (c)(1) must be upheld because our Legislature could have had valid reasons for its legislative decision.

D.-F.*

m. DISPOSITION

The judgment is affirmed.

Banke, J., concurred.

1

All statutory references are to the Penal Code unless otherwise indicated.

2

Section 12021 restricts firearm possession by specified categories of persons, including felons and certain misdemeanants. (§ 12021, subds. (a), (c).) With exceptions not relevant here, section 12021, subdivision (c)(1) provides “any person who has been convicted of a misdemeanor violation of Section 71,76,136.1,136.5, or 140, subdivision (d) of Section 148, Section 171b, paragraph (1) of subdivision (a) of section 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. . . .”

3

Section 12316, subdivision (b)(1) provides: “No person prohibited from owning or possessing a firearm under Section 12021 or [other specified statutes] shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.”

4

When strict scrutiny applies, a law is constitutional only if it is “necessary to achieve a compelling state interest.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [39 Cal.Rptr.3d 821, 129 P.3d 29].)

5

Despite its holding, Marzzarella ultimately applied means-end scrutiny to section 922(k) of title 18 of the United States Code because the court was uncertain whether the ban on possession of altered weapons fit within the categories listed as exempt by Heller. (Marzzarella, supra, 614 F.3d at pp. 93-95.)

6

In any event, Skoien ultimately upheld the statute under consideration, a limited federal misdemeanant firearms disability statute, against the Second Amendment challenge. (Skoien, supra, 614 F.3d at pp. 643-645.) It therefore provides no support for concluding that section 12021, subdivision (c)(1) is invalid, regardless of the type of scrutiny applied.

7

Defendant characterizes this as an “as applied” challenge. We conclude section 12021, subdivision (c)(1) is immune to such challenges if it is within the Heller safe harbor. Further, defendant has made no showing as to the nature or magnitude of the force he used in connection with his predicate offense.

8

Defendant also makes what he characterizes as a “facial” constitutional challenge, but it fails because it does not assert “ ‘ “[the] statute is invalid on its face and . . . incapable of any valid application.” ’ ” (Yarbrough, supra, 169 Cal.App.4th at p. 311.) As discussed above, he claims only that section 12021, subdivision (c)(1) cannot constitutionally be applied to any person convicted of a “nonviolent misdemeanor.” He does not argue section 12021, subdivision (c)(1) cannot constitutionally be applied to a person convicted of a violent misdemeanor, such as the defendant in Flores. (See Flores, supra, 169 Cal.App.4th at pp. 574-575.)

9

In footnote 3, the dissent notes that “Heller seems to have no quarrel with felon restrictions,” implying that Heller’s disqualification reaches only felon-in-possession statutes, not those affecting misdemeanants. As noted above, we agree with Flores, supra, 169 Cal.App.4th 568, 575, that the reasoning in Heller that insulates felon-in-possession statutes applies as well to statutes governing misdemeanants.

10

Ultimately, application of heightened scrutiny is not essential to the equal protection analysis of the dissent. Because the dissent concludes there is no rational basis for excluding out-of-state misdemeanants from section 12021, subdivision (c)(1), its analysis would find the statute unconstitutional wholly apart from Heller and the Second Amendment.

11

The dissent argues there was no evidence in the record that defendant was provided the required warning at the time of his conviction. Whether defendant was personally afforded the warnings, however, is irrelevant to the equal protection argument. Provision of the warning is required by statute in California, but it would likely not be provided in other jurisdictions. This distinction alone provides a rational basis for the Legislature’s failure to include out-of-state convictions in the statute, regardless of whether defendant personally received the required warning.

12

The dissent cites two decisions finding statutes unconstitutional because they made distinctions that were not supported by a rational basis. (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424 [110 Cal.Rptr.3d 498]; Doe v. Saenz (2006) 140 Cal.App.4th 960 [45 Cal.Rptr.3d 126].) Our decision is not in conflict with either of these decisions, which feature considerably different circumstances. In Walgreen, the court held that a local ordinance banning tobacco sales in traditional pharmacies but not other retail stores containing a pharmacy made an irrational distinction. (Walgreen, at pp. 437-444.) In Saenz, the court found irrational a statute that disqualified persons who committed potentially nonviolent crimes from working in community care facilities but not persons convicted of more serious, violent crimes. (Id. at pp. 991-993.)

13

A conclusion that the failure to include out-of-state misdemeanants is not supported by a rational basis would have ramifications beyond section 12021, subdivision (c)(1), since it suggests that other statutes relying only on in-state convictions are similarly invalid. Most notable among these is section 12021, subdivision (e), which precludes firearms possession by juveniles who have committed certain California offenses.

See footnote, ante, page 1481.