Is PC 25850 Unconstitutional If Part of PC 26150 Is?

On the afternoon of June 13, 2021, two uniformed San Jose police officers were traveling in an unmarked car near the intersection of Gridley Street and Percivale Drive when they came upon a group of five people in and around a Ford Mustang parked curbside.  No other cars were nearby.  Smelling what they described as “freshly burnt” marijuana or “marijuana being smoked” by the group, the officers stopped to investigate the smell.

The officers stopped and got out of their car.  They identified themselves as police and asked if the group was “just hanging out and smoking weed?”  The officers then asked if there was anything else besides weed in the car. 

After asking the question, the officers directed one of the five to sit on the curb and performed a pat down search of him.

The officer then looked at T.F.-G., a minor, and told to “come over here.”  T.F.- G. asked him “what for?”  The officer responded, “Just come over here.”  T.F.-G. repeated, “For what”  The officer started to say, “Don’t make me . . .” when T.F.-G. took off at a full sprint down the street.

One of the officers caught T.F.-G., tackled him and punched him in the right eye.  The officer then handcuffed the youth and searched him, finding a loaded unregistered handgun in his pocket.

Two days later, the Santa Clara District Attorney petitioned the juvenile court to declare T.F.-G. a ward of the juvenile court pursuant to Welfare & Institutions Code § 602(a) and alleged he violated Penal Code §§ 11106, 25850 (“carrying a loaded firearm not registered to him”); carrying a concealed firearm (Penal Code § 25400(a)(2)); being a minor in possession of a firearm capable being concealed upon the person (Penal Code § 29610) and resisting, delaying or obstructing a police officer (Penal Code § 148(a)(1)), a misdemeanor. 

Several months later, T.F.-G. admitted the violation of section 25850(a) as a felony.  The judge then placed him on probation.  As one consequence of the wardship adjudication, T.F.-G. “shall not own, or have in possession or under custody or control, a firearm until [he] is 30 years of age.” Penal Code § 29820(b).

T.F.- G. appealed on two constitutional grounds. This article will only summarize his second argument, specifically, that the prosecution of any unlicensed person carrying of a loaded firearm in public (Penal Code § 25850) in unconstitutional.

Penal Code § 25850(a) provides: “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 any public street in a prohibited area of unincorporated territory.”

There are several exceptions to § 25850.  One is if one obtains a concealed carry license under Penal Code § 26150, which allows a sheriff to issue such a license 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; and (4) the applicant has completed a course of training (relating to firearms safety, handling, shooting, and permissible usage).”

The Sixth Appellate District, in response to his appeal, acknowledged that New York Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. ___, 142 S. Ct. 2111 may render California’s concealed carry “good cause” licensing requirement unconstitutional, the unconstitutionality of a single, discreet part of this licensing requirement does not render § 25850 facially unconstitutional.  

“A facial challenge seeks to void a statute as a whole by showing that ‘no set of circumstances exist under which the act would be valid,” i.e., that the law is unconstitutional in all its applications. In re D.L. (2023) 93 Cal. App. 5th 114, at 157 (quoting Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449).

As the Sixth District commented, T.F.-G. argues that if any requirement for issuance of a license to carry a loaded firearm is unconstitutional, then the application of section 25850 to punish any unlicensed person must also be unconstitutional.  This requires a showing that the statute is at least “invalid in the generality or great majority of cases.”  Compare Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084, 1102 (total and fatal conflict) with People v. Buenrostro (2018) 6 Cal. 5th 367, 388 (explaining, in rejecting facial challenge, that the “minimum our cases have accepted is a showing that the statute is invalid in the generality or great majority of cases.”). 

Here, T.F.-G. did not make that showing, so his conviction was affirmed.

For more information about the effect of Bruen on California law, please click on the following articles: