People v. Miller

94 Cal.App.5th 935

312 Cal.Rptr.3d 655

The PEOPLE, Plaintiff and Appellant,

v.Stephanie MILLER, Defendant and Respondent.

C097229

Court of Appeal, Third District, California.

Filed August 24, 2023

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

RENNER, J.

In a complaint filed in February 2022, the Sacramento County District Attorney charged defendant Stephanie Miller under Penal Code section 25400, subdivision (a)(1), with carrying a concealed firearm in a vehicle under her control.¹ Section 25400 does not apply to individuals, unlike Miller, who are licensed to carry concealed firearms under California law. (§ 25655.) In August 2022, Miller filed a demurrer asserting her concealed firearm charge was unconstitutional under New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. ––––, 142 S.Ct. 2111, 2122, 2156, 213 L.Ed.2d 387 ( Bruen ), which held the "proper cause" requirement in New York's public carry licensing regime violated the Second and Fourteenth Amendments. The trial court sustained Miller's demurrer and dismissed the charge against her.

On appeal, the People argue Miller lacked standing to raise her constitutional challenge because she never attempted to apply for a license and could not show she would satisfy any valid conditions California places on receiving one. The People argue Bruen only invalidated the "good cause" requirement in California's firearm licensing statutes and they remain otherwise constitutional pursuant to the severability doctrine. The People further assert the trial court's interpretation of Bruen is overly broad and the criminal charge of having a concealed firearm under section 25400 remains valid post- Bruen . We conclude that, to the extent Miller had standing, her assertions are ultimately unavailing because section 25400 does not violate the Second Amendment regardless of the constitutionality of California's firearm licensing statutes. We therefore reverse the superior court's order sustaining Miller's demurrer and dismissing the charge against her.

I. BACKGROUND

"California has a multifaceted statutory scheme regulating firearms. State law generally prohibits carrying concealed firearms in public, whether loaded or unloaded. [(]§ 25400[)]. State law also generally prohibits carrying loaded firearms on the person or in a vehicle in any public place or on any public street, in either an incorporated city or a ‘prohibited area’ of ‘unincorporated territory.’ [(]§ 25850.[)] Finally, state law generally prohibits carrying unloaded handguns openly on the person in a public place or on a public street, in either an incorporated city or a ‘prohibited area’ of an ‘unincorporated area of a county.’ [(]§ 26350.[)] [¶] However, there are numerous exceptions to these general prohibitions." ( Peruta v. County of San Diego (9th Cir. 2016) 824 F.3d 919, 925.) This case focuses on one of these overlapping general prohibitions and one exception thereto.

Section 25400 generally prohibits carrying a concealed firearm. Miller was charged solely with violating section 25400, subdivision (a)(1), which applies where a person "[c]arries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon the person." It was further alleged that Miller was not registered as the owner of the firearm, and the firearm was loaded and in her immediate possession and readily accessible to her. ( § 25400, subd. (c)(6).)

Miller's arguments in the trial court implicate an exception to criminal liability for persons licensed to carry a concealed firearm under California law: " Section 25400 does not apply to, or affect, the carrying of a pistol, revolver, or other firearm capable of being concealed upon the person by a person who is authorized to carry that weapon in a concealed manner pursuant to Chapter 4 (commencing with Section 26150 )." ( § 25655.) The relevant portions of Chapter 4 provide: "When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person," the sheriff or head of the police department "may issue a license to that person 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 [meets relevant residency requirements]. [¶] (4) The applicant has completed a course of training as described in Section 26165." ( §§ 26150, subd. (a), 26155, subd. (a), italics added.) Neither "good moral character" nor "good cause" are further defined by statute. Additionally, "[a] license ... shall not be issued if the Department of Justice determines that the person is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm." ( § 26195, subd. (a).)

Miller's demurrer argued that, under Bruen , the charges against her were unconstitutional. She contended California's firearm licensing scheme is nearly identical to the New York scheme invalidated in Bruen , and California's "good moral character" and "good cause" requirements are unconstitutional. She argued that "[b]ecause the law that would otherwise make firearm possession in public legal is unconstitutional, a criminal defendant cannot be prosecuted for violating it." Miller asserted that whether she had previously applied for a concealed weapons license was irrelevant to whether she had standing to contest California's licensing scheme.²

The district attorney opposed the demurrer on the grounds that Miller lacked standing to litigate the constitutionality of California's concealed carry firearm licensing regime. The district attorney further argued Bruen struck down only the "good cause" requirement, and the remainder of the licensing scheme was constitutional because the "good cause" requirement is severable. Moreover, the district attorney argued section 25400 remains constitutional.

The trial court sustained Miller's demurrer and dismissed the case against her "based on the language of the [ Bruen ] case ... and the language of" section 25400.

II. DISCUSSION

A. Standard of Review

A demurrer raises only issues of law as to the sufficiency of the accusatory pleading. ( People v. Biane (2013) 58 Cal.4th 381, 388, 165 Cal.Rptr.3d 842, 315 P.3d 106.) As such, we review the trial court's ruling de novo. ( People v. Perlas (2020) 47 Cal.App.5th 826, 832, 261 Cal.Rptr.3d 234.) Miller demurred to the accusatory pleading on the ground that the facts do not constitute a public offense. (See § 1004, subd. 4.)

Because this court and the Central California Appellate Project were unable to contact defendant, Miller is not represented by counsel in this appeal and did not file a respondent's brief. In these circumstances, we may decide the appeal on the record, the opening brief, and any oral argument by the appellant. ( Cal. Rules of Court, rule 8.360(c)(5)(B).) Nevertheless, the appellant "still bears the ‘affirmative burden to show error whether or not the respondent's brief has been filed.’ " ( Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078, 146 Cal.Rptr.3d 135.)

B. Standing

As a threshold matter, the Attorney General contends the trial court erred when it concluded Miller had standing to challenge the constitutionality of California's firearm licensing laws.

"It is well-settled law that the courts will not give their consideration to questions as to the constitutionality of a statute unless such consideration is necessary to the determination of a real and vital controversy between the litigants in the particular case before it. It is incumbent upon a party to an action or proceeding who assails a law invoked in the course thereof to show that the provisions of the statute thus assailed are applicable to him and that he is injuriously affected thereby." ( People v. Perry (1931) 212 Cal. 186, 193, 298 P. 19.) "An individual therefore has no standing to challenge the validity of a statute unless that individual has been impacted by the enforcement of the statute." ( People v. Leung (1992) 5 Cal.App.4th 482, 490, fn. 2, 7 Cal.Rptr.2d 290.) "This rule does have limited exceptions—most commonly invoked in free speech cases." ( People v. Buza (2018) 4 Cal.5th 658, 675, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Of note to this appeal, in the First Amendment context, "a person has the standing to challenge a statute on the ground that it delegates overly broad licensing authority to an administrative officer whether or not his conduct could be proscribed by a properly drawn enactment and whether or not he has applied for a license. One who could have obtained a license for the asking may call into question the whole scheme of licensing when he is prosecuted for failure to procure it. Standing is recognized in such a situation because of the dangers inherent in tolerating, in the realm of the First Amendment, the existence of a penal statute susceptible of sweeping and improper application." ( Burton v. Municipal Court (1968) 68 Cal.2d 684, 688, 68 Cal.Rptr. 721, 441 P.2d 281.) In In re D.L . (2023) 93 Cal.App.5th 144, 310 Cal.Rptr.3d 562 (D.L .), another Court of Appeal recently concluded a defendant had standing to assert a facial challenge to section 25850 (which prohibits carrying a loaded firearm in public) based on Bruen despite not having sought a license or having been eligible for one due to his age. The D.L . court explained, it is "unclear" whether standing for defendants "charged or convicted under an allegedly unconstitutional statutory licensing framework" under which they never applied for a license is limited to First Amendment challenges and took the "more cautious view" that standing is not so limited. ( D.L., supra , at p. 160, 310 Cal.Rptr.3d 562.)

D.L . relied on one case outside of the ...