CA Felon in Possession of Firearm Law (29800) Valid

Early in the morning of November 10, 2019, after the bars had closed, Christopher B. and his friends were walking down Durant Avenue in Berkeley.  Christopher was aware of people and noise on the street, but nothing made him fear for his safety until he heard gunshots and dropped to the ground, his ears ringing, and his legs feeling heavy.  A friend told him he had been shot.  At the hospital, Christopher was treated for gunshot wounds to both legs, which required surgery.  It took him a year to recover from his physical injuries.

Mr. Jucari Scott Anderson was later arrested for the shooting, tried in the Alameda Superior Court and convicted of four felony offenses as a result of this shooting: assault with a semiautomatic firearm (Penal Code § 245(b)); possession of a firearm by a felon (Penal Code § 29800(a)(1)); possession of ammunition by a felon (Penal Code § 30305(a)); and carrying a concealed firearm (§ 25400(a)(2))). 

The jury also found true allegations that defendant personally used a firearm (Penal Code § 12022.5(a)) and personally inflicted great bodily injury (Penal Code § 12022.7) in committing the assault.  In convicting on the assault count, the jury rejected defendant's claim of self-defense.  In convicting on the remaining counts, the jury accepted defendant's testimony that he had previously been convicted of three felonies involving moral turpitude, and as a result was not allowed to possess or carry a firearm.

After the jury was excused, the judge addressed defendant's prior convictions, finding true three allegations of prior felonies: a November 1999 Contra Costa County conviction for assault with a deadly weapon other than a firearm (Penal Code § 245(a)(1)); a July 2000 Alameda County conviction for maliciously and intentionally shooting at an inhabited dwelling or motor vehicle (Penal Code § 246); and an August 2008 San Francisco County conviction for possession of a firearm by a felon (Penal Code § 12021(a)(1)).  The judge also found true allegations that defendant has a prior “strike” and prior serious felony conviction. (Penal Code §§ 667(a)(1), (e)(1); 1170.12(c)(1)).

The court then sentenced defendant to 19 years in prison for the felony assault conviction, imposing concurrent or stayed terms for the remaining offenses. 

Neither at trial nor at sentencing did defendant raise the Second Amendment.

Mr. Anderson then appealed in the First Appellate District Court of Appeal.  He argued that Penal Code § 29800(a)(1) under which he was convicted violated the Second Amendment to the U.S. Constitution.  The First District pointed out that since it was a facial challenge to the statute, it could be raised for the first time on appeal, citing to In re Sheena K. (2007) 40 Cal. 4th 875, 889, 55 Cal. Rptr. 3d 716, 153 P. 3d 282.

The First District then offered a historical evaluation of the law on the Second Amendment, first citing to District of Columbia v. Heller (2008) 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637, wherein the U.S. Supreme Court recognized the right of a homeowner to own a firearm, striking  down the District of Columbia's prohibition on possessing usable handguns in the home. 

The First District then traced how Heller was made applicable to the states and not just the District of Columbia in McDonald v. City of Chicago (2010) 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894, but that the right to bear arms was not absolute, just as the freedom of speech right is not absolute. Heller, supra, 554 U.S. at p. 595, 128 S. Ct. 2783; McDonald, at p. 786, 130 S. Ct. 3020.

The First Appellate District then traced such a right to New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1, 26–31, 142 S. Ct. 2111, 213 L. Ed. 2d 387, wherein the Supreme Court extended Heller and McDonald “beyond hearth and home.”  There, the Court held “that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home,” and the State of New York could not condition issuance of a license to carry on a citizen showing a particularized “special need” for armed defense. Id. at pp. 10–11, 142 S. Ct. 2111.

However, in Bruen, the Court qualified this right to bear arms outside the home, stating:  “To justify its regulation, the government may not simply posit that the regulation promotes an important interest.  Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Bruen, supra, 597 U.S. at p. 17, 142 S. Ct. 2111.

What this “historical tradition of firearm regulation” was then defined further in United States v. Rahimi (2024) 602 U.S. ___, wherein the U.S. Supreme Court upheld a ban on allowing a person, Mr. Rahimi, from possessing a firearm if that person was subject to a domestic violence restraining order.  

The First District then summarized Mr. Anderson’s arguments.  His appeal stated that none of the 17th and 18th Century sources is a categorical ban on felons possessing firearms, and California's earliest such statute dates only to 1923 (citing e.g. People v. Domenico (1953) 121 Cal.App.2d 124, 126–127, 263 P.2d 122).  Second, 17th and 18th Century statutes that disarmed persons based on their race or religion would never survive scrutiny under the Fourteenth Amendment and, he contends, in England and colonial America these laws were intended for the different purpose of preventing armed insurrection.  Third, some of the statutes and criminal penalties requiring a person to forfeit arms fell short of a lifetime ban on possessing arms; a person might have his forfeited arms returned after a period of years, or be allowed to procure replacement weapons. (citing Range v. Attorney General of the United States (3rd Cir. 2023) 69 F.4th 96, 103, at 105 – 106).

The First District then applied 29800 to Mr. Anderson, just as the U.S. Supreme Court applied the statute at issue there to Mr. Rahimi.  Here, Mr. Anderson had prior convictions for felonious conduct involving moral turpitude on three separate occasions: one for maliciously and intentionally shooting at an inhabited dwelling or motor vehicle (§ 246); one for assault with a deadly weapon other than a firearm (§ 245(a)(1)); and one for being a felon in possession of a firearm (§ 12021(a)(1)). 

 

It then concluded that “we have no trouble concluding that in the founding era, he could have been disarmed as punishment for at least one of these crimes.”