People v. Garcia

1

THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL GARCIA, Defendant and Appellant.

2d Crim. No. B323974

California Court of Appeals, Second District, Sixth Division

March 18, 2024

NOT TO BE PUBLISHED

Superior Court of Los Angeles County, No. TA155843 Hector E Gutierrez, Judge

Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Bryne, Supervising Deputy Attorney General, Stephanie A. Miyoshi and Susan S. Kim Deputy Attorneys General, for Plaintiff and Respondent.

CODY J.

Juan Manuel Garcia appeals from judgment following a trial at which the jury found him guilty of possession of a controlled substance with a firearm (Health &Saf. Code, § 11370.1, subd. (a); count 1) and possession of a firearm with a prior felony conviction (Pen. Code^[1], § 29900, subd. (a)(1) (§ 29900(a)(1); count 2). Appellant contends: (1) this court must reverse his section 29900(a)(1) conviction because New York State Rifle &Pistol Assn., Inc. v Bruen (2022) 597 U.S. 1 (Bruen), renders that statute unconstitutional; (2) the trial court erred in failing to stay the punishment for the section 29900(a)(1) conviction under section 654; and (3) his case must be remanded to the trial court for a determination of whether, under section 1170, subdivision (b)(6)(A), his childhood trauma was a contributing factor in the commission of the offenses such that imposition of the low term is warranted.

We agree appellant's sentence violates section 654 and will stay execution of the eight-month consecutive sentence imposed on count 2. We will affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Los Angeles County Deputy Sheriffs Tobin Hood and Jonathan Montes were on vehicle patrol when they saw a black Volkswagen Beetle blocking an alley. The deputies observed appellant, who was in the passenger seat, conversing with Waldo Gonzalez in the driver seat. After initially driving onward, within seconds the deputies returned and pulled up next to the vehicle. The vehicle's seats were reclined, and both appellant and Gonzalez appeared to be sleeping.

Deputy Hood approached appellant while Deputy Morales approached Gonzalez. Appellant awoke shortly after Deputy Hood knocked on the car window. Deputy Hood saw appellant using his feet to drag a plastic bag from the front of the foot compartment toward the area underneath the passenger seat. As appellant moved the bag, Deputy Hood saw a firearm, later identified as a loaded semiautomatic handgun. The firearm was between appellant's feet when Deputy Hood first saw it. The deputies handcuffed and searched appellant. Deputy Hood found a bindle with over ten grams of methamphetamine in appellant's right front pant pocket. Deputy Montes recovered a methamphetamine pipe from appellant's waistband. The court accepted the parties' stipulation that appellant had been previously convicted of a felony.

The jury convicted appellant of possession of a controlled substance with a firearm (count 1) and possession of a firearm with a prior felony conviction (count 2). At sentencing, appellant's trial counsel stated: "[J]ust to get a little context, there's a grown man before us, a man in middle age now. But he was also once an eight-year-old child who indicated to me today that he was molested by his uncle. He never told anyone. This is a common story. It's very painful for people to talk about. I can't corroborate that, and I'm no expert. However, we do know my client has a criminal history. Despite the mitigating factor, I think under the new Rules of Court and what has been happening with the change in the law, those type of early childhood traumas can lead to a recommendation of a low-term sentence."

The court sentenced appellant to a total term of four years, eight months: the upper term of four years for count 1, plus a consecutive term of eight months (one-third the middle term) for count 2. The court relied upon appellant's prior prison term as a circumstance in aggravation to impose the upper term on count 1.

DISCUSSION

Section 29900(a)(1) Constitutionality

Appellant contends Bruen requires reversing his conviction under section 29900(a)(1), which prohibits individuals previously convicted of certain violent offenses from possessing or owning firearms.^[2] We disagree.

"A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself not its application to the particular circumstances of an individual." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) "The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review." (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.) A facial constitutional challenge may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889.)

"'To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute....'" (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267.) Instead, a facial challenger must demonstrate the statute is constitutionally infirm in, at minimum, "'the generality or great majority of cases.'" (People v. Buenrostro (2018) 6 Cal.5th 367, 388.) Other cases have adopted an even more stringent standard that requires showing the statute's "'"provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions."'"

(Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084; see also T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1117, fn. 6 [noting divergent formulations of standard].) Appellant's claim fails under either standard. Section 29900 does not violate the Second Amendment in the generality or great majority of cases, much less inevitably pose a present, total, and fatal conflict with that amendment.

Although appellant relies on Bruen, we begin with a brief review of U.S. Supreme Court precedent that informs Bruen. In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the Court struck down a District of Columbia law banning the possession of operable handguns in the home. (Id. at pp. 573-574, 635.) The Court held the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." (Id. at p. 592.) However, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." (Id. at p. 626.) Accordingly, the Court added the following: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ...." (Id. at p. 626.)

In McDonald v. City of Chicago (2010) 561 U.S. 742 (McDonald), the Court held the Second Amendment right recognized in Heller applies to the states through the Fourteenth Amendment. The McDonald plurality reiterated Heller's assurance that this Second Amendment jurisprudence did not imperil longstanding regulatory measures like prohibitions on felons possessing firearms. (Id. at p. 786 (plur. opn. of Alito, J.).)

In Bruen, the Court invalidated New York's public-carry licensing regime, which required applicants to satisfy an amorphous "proper cause" standard. (Bruen, supra, 597 U.S. at pp. 11-12.) It rejected the use of "means-end scrutiny" to evaluate Second Amendment claims. (Id. at pp. 19-20, 24.) The Court articulated the proper framework as follows: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" (Id. at p. 24.)

While the Bruen majority did not directly address the question of felons possessing firearms, the majority consistently referenced the Second Amendment rights of "law-abiding" citizens. (Id. at pp. 9, 26, 29, 30, 31, 33, fn. 8, 38, fn. 9, 71.) Indeed, the Bruen Court expressed its core holding as follows: "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Id. at p. 71, italics added.) Moreover, the Court generally approved so-called "shall-issue" licensing schemes that issue gun permits more routinely but nevertheless subject individuals to background checks. (Id. at p. 38, fn. 9.)

Nothing in Bruen signals any departure from the continuing validity of laws prohibiting felons from possessing firearms as originally expressed in Heller and reiterated by the McDonald plurality. Even assuming the endorsements of such laws in Heller and McDonald are dicta, "they are sensible and persuasive dicta." (People v. Odell (2023) 92 Cal.App.5th 307, 317 (Odell).) Bruen reinforces these endorsements. Bruen's consistent focus on the Second Amendment rights of law-abiding citizens impliedly negates those rights for citizens who do not abide by the law. Convicted felons, by definition, have failed to abide by the law. The Bruen majority's approval of background checks in licensing...