Filed 10/23/20 P. v. Malott CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C082691
Plaintiff and Respondent, (Super. Ct. No. 14F01069)
v.
RICHARD ANDREW MALOTT,
Defendant and Appellant.
Under California law, a person generally may not carry a concealed weapon in
public. One exception to this rule is for those who are licensed to carry concealed
weapons. A jury convicted defendant Richard Andrew Malott of violating this law by
carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1))1 and carrying
a firearm on his person in public (§ 25850, subd. (a)). Although defendant argued he had
1 Undesignated statutory references are to the Penal Code.
1
a license authorizing him to carry the firearm, the jury declined to find this license
exempted him from the charges.
On appeal, defendant contends California’s licensing scheme for concealed
firearms is unconstitutional in two respects: first, he claims it is too vague and violates
the Fourteenth Amendment’s due process clause; and second, he argues it
unconstitutionally burdens his Second Amendment right to bear arms. He also contends
the trial court committed several errors in its jury instructions and its evidentiary rulings.
We reject defendant’s constitutional challenges to California’s concealed weapons
laws and his objections to the lower court’s evidentiary rulings. We also find the alleged
errors in the jury instructions, assuming there were any, were harmless beyond a
reasonable doubt. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April of 2013, Sacramento County Sheriff’s Sergeant Darron Epperson pulled
over defendant after seeing him run a stop sign. Epperson asked defendant to step out of
the car and after he did, Epperson asked whether defendant was carrying any weapons.
Defendant responded he was not. Epperson then patted down defendant and noticed a
rigid object in defendant’s front right pant pocket. When asked about the object,
defendant first claimed it was his keys; but after Epperson said he thought otherwise,
defendant said he did not know what was in his pocket. Epperson then reached into
defendant’s pocket and found a loaded handgun—namely, a .22-caliber Derringer
handgun.
Based on these facts, defendant was charged with carrying a concealed firearm in
a vehicle (§ 25400, subd. (a)(1)) and carrying a firearm on his person in public (§ 25850,
subd. (a)). He was also charged with two enhancements. He was charged with an
enhancement on the first offense, carrying a concealed firearm in a vehicle, because the
firearm was loaded, and defendant was not listed as the gun’s registered owner with the
Department of Justice. He was also charged with a similar enhancement for the second
2
offense, carrying a firearm on his person in public, because he was not listed as the gun’s
registered owner with the Department of Justice. These alleged enhancements raised the
charges, which would otherwise be misdemeanors, to felonies. (See §§ 25400, subd.
(c)(6), 25850, subd. (c)(6).)
At trial, much of the testimony concerned whether defendant had a license that
authorized him to carry the Derringer handgun.
Defendant argued both charges against him failed because he had a license from
Nevada County that authorized him to carry a concealed firearm.
The prosecution countered that defendant’s license did not cover the Derringer
handgun, and in any event, the license was suspended at the time of his arrest. To
support this argument, the prosecution relied principally on the testimony of a witness
from the Nevada County Sheriff’s Office, Candy Poulter. As Poulter testified,
defendant’s license mentioned only that he was authorized to carry a .380-caliber Beretta
handgun and a .45-caliber Sig handgun. The license did not reference the Derringer
handgun that defendant carried when arrested. Poulter also testified about two
documents showing that defendant’s license was suspended at the time of his arrest. One
was a July 6, 2012 letter that the Nevada County Sheriff’s Office had sent to defendant,
which stated that defendant’s license had been suspended and asked that he mail his
license back to the sheriff’s office. The other was a license report from the sheriff’s
office that included various notes about defendant’s license. These notes, among other
things, stated that defendant’s license was renewed in May of 2012, that the sheriff’s
office sent defendant a letter on July 6, 2012, advising him that his license had been
suspended and that on July 9, 2012, the sheriff’s office received defendant’s license.
After the close of evidence, the trial court instructed the jury that it was a defense
to the charges if defendant had a license to carry the particular firearm. Defendant’s
counsel had asked for an instruction on the license defense and argued the prosecution
should carry the burden to show that defendant did not have a license. The court,
3
however, found nothing in the CALCRIM instructions discussing a license defense.
Believing the CALCRIM instructions might have mistakenly omitted a discussion of this
defense, the court next looked to the older CALJIC instructions—specifically, CALJIC
No. 12.46.2. According to that instruction, “[i]t is a defense that the defendant had a
license to carry the particular firearm. To establish this defense, the burden is on the
defendant to raise a reasonable doubt that he was acting lawfully.” Satisfied with this
language, the court inserted it into the standard CALCRIM instructions.
The jury convicted defendant on both counts. It hung on the charged
enhancements, however, and the prosecution ultimately dismissed the enhancements.
Because the enhancements were dropped, both charges were reduced to misdemeanors.
At sentencing, the trial court suspended imposition of judgment, placed defendant on
formal probation for three years, and ordered him to serve 90 days in jail.
Defendant timely filed this appeal.
DISCUSSION
I
California’s Concealed Weapons Laws and the Vagueness Doctrine
Defendant raises two constitutional challenges to California’s licensing scheme for
concealed firearms. First, he argues this licensing scheme is unconstitutionally vague
because it fails to adequately notify licensees that they are limited to carrying only those
firearms specifically referenced in their license. We disagree.
The void-for-vagueness doctrine, “which derives from the due process concept of
fair warning, bars the government from enforcing a provision that ‘forbids or requires the
doing of an act in terms so vague’ that people of ‘common intelligence must necessarily
guess at its meaning and differ as to its application.’ [Citations.]” (People v. Hall (2017)
2 Cal.5th 494, 500.) To succeed on a vagueness claim, a litigant must show “the law is
vague as to [him or] her or ‘impermissibly vague in all of its applications.’ [Citations.]”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
4
Applying the doctrine here, we find California’s statutory scheme governing
concealed firearms is sufficiently clear about what is prohibited. Section 25400,
subdivision (a)(1) makes it unlawful for a person to carry a concealed firearm “within any
vehicle that is under the person’s control or direction.” Section 25850, subdivision (a) in
turn, prohibits a person from carrying a loaded firearm “on the person or in a vehicle
while in any public place or on any public street.” Both statutes reasonably inform the
public about the generally prohibited conduct. Both statutes also include numerous
exceptions to their prohibitions. Relevant here, section 25655 and 26010 provide an
exception to section 25400 and 25850, respectively, for those licensed to carry concealed
weapons under section 26150 et seq. Section 26150 et seq., finally, provides the
framework governing licenses to carry concealed weapons, and it includes several
statutes that make clear that a license only covers those firearms specifically referenced
in the license. Section 26175, subdivision (i) for example, provides that any license
“shall. . . contain a description of the weapon or weapons authorized to be carried, giving
the name of the manufacturer, the serial number, and the caliber.” Section 26215,
subdivision (a) adds that a “person issued a license pursuant to this article may apply to
the licensing authority for an amendment to the license to . . . . [¶] (1) Add or delete
authority to carry a particular pistol, revolver, or other firearm capable of being
concealed upon the person.” (Italics added.)
Defendant acknowledges that both section 26175 and section 26215 refer to the
designation of particular firearms in a license, but, he argues, an ordinary person would
still conclude that a license allowing the carrying of certain specified firearms would also
allow the carrying of other concealable firearms.
We disagree. Section 26175, subdivision (i) is express that a license shall describe
the weapons authorized to be carried, and it must do so with particularity by describing
the weapon, the name of the manufacturer, the serial number, and the caliber. So, for
example, if a licensee were authorized to carry a certain type of Derringer handgun under
5
his license, the license would need to describe that handgun in specific detail. And if the
license did not describe the Derringer handgun, then it follows the license did not
authorize the carrying of that particular weapon. Section 26215, subdivision (a) further
emphasizes the particularized nature of licenses, providing that a licensee may add or
delete a “particular” firearm to his or her license—a requirement that only makes sense if
licenses cover only those particular firearms listed in the license. Considering these
provisions, we find people of common intelligence would not have to guess to understand
that concealed carry licenses only cover those firearms specifically mentioned.
Defendant’s vagueness challenge, accordingly, fails.
II
Jury Instructions
Defendant also raises several arguments relating to the jury instructions. First, he
contends the trial court erred in placing the burden on him to show he had a license to
carry a concealed weapon. According to defendant, the court should have instructed that
the prosecution had the burden to show he did not have a license. Second, because the
question of whether his license was suspended was placed in issue, defendant argues the
court erred in failing to instruct that the prosecution had the burden of showing defendant
knew his license was suspended.
We acknowledge, at the start, that courts have historically placed on defendants
the burden of showing they had a license to carry a concealed weapon. In People v. Ross
(1922) 60 Cal.App. 163, for example, the court found the prosecution had no duty “to
show that no license had been issued to appellant.” (Id. at p. 166.) The court reasoned
that “[i]f a license has been issued that fact is more immediately within the knowledge of
the defendant and can be easily established by him; and there is no hardship or injustice
in placing so slight a burden upon him.” (Id. at p. 167.) Later courts have found
likewise. (See People v. Superior Court (1969) 2 Cal.App.3d 197, 202, fn. 7 [“the
burden of proof is upon the carrier of such a weapon to show his license to carry it”];
6
People v. Williams (1960) 184 Cal.App.2d 673, 675 [“The burden was on defendant to
show that he had a license to carry the pistol.”].)
We need not decide, however, whether this precedent defeats defendant’s
arguments here; to the extent the court erred in its instructions, the error was harmless.
And that is true whether the alleged error is reviewed under the standard stated in People
v. Watson (1956) 46 Cal.2d 818 or the more exacting test described in Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
Per Chapman v. California, supra, 386 U.S. 18, if a trial court’s instructional error
violates the United States Constitution, then to avoid reversal, the People must “ ‘prove
beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.’
[Citation.]” (People v. Mower (2002) 28 Cal.4th 457, 484.) But if a trial court’s
instructional error violates only California law, then under People v. Watson, supra, 46
Cal.2d 818, the decision will be affirmed unless “ ‘it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.’ [Citation.]” (Mower, at p. 484.)
Even assuming the more rigorous Chapman test applies here, we conclude any
error in the trial court’s instructions related to the license defense was harmless beyond a
reasonable doubt. Defendant argued, at the trial court, that his concealed carry license
allowed him to carry the Derringer handgun that he possessed at the time of his arrest.
But because defendant’s license did not even cover the Derringer handgun, the alleged
defense fails as a matter of law. As discussed above in part I of the Discussion, a
concealed carry license only covers those particular firearms listed in the license. And as
the record shows, defendant’s license, even before it was suspended, only allowed him to
carry two particular weapons: a .380-caliber Beretta handgun and a .45-caliber Sig
handgun. It did not list the Derringer handgun that defendant carried at the time of his
arrest. Defendant thus lacked any potentially meritorious defense that his license
7
authorized him to carry the Derringer handgun. As a result, any error in the instructions
about the license defense was harmless beyond a reasonable doubt.
III
Admission of the Nevada County Sheriff’s Office’s License Report
Defendant next argues the trial court violated both hearsay rules and the
confrontation clause in admitting into evidence the Nevada County Sheriff’s Office’s
concealed weapon license report. Neither claim has merit.
A. Hearsay Claims
Hearsay statements—out-of-court statements offered to prove the truth of the
matter asserted—are generally inadmissible under Evidence Code section 1253. But
there are several exceptions to this general prohibition. Evidence Code section 1271
provides one exception for writings recording an act, condition, or event when (1) the
“writing was made in the regular course of a business,” (2) the “writing was made at or
near the time of the act, condition, or event,” (3) the “custodian or other qualified witness
testifies to its identity and the mode of its preparation,” and (4) the “sources of
information and method and time of preparation were such as to indicate its
trustworthiness.” Evidence Code section 1280 provides a similar exception for writings
recording an act, condition, or event when (1) the “writing was made by and within the
scope of duty of a public employee,” (2) the “writing was made at or near the time of the
act, condition, or event,” and (3) the “sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
“A trial court has broad discretion in determining whether a party has established
the[] foundational requirements” of a hearsay exception. (People v. Martinez (2000) 22
Cal.4th 106, 120.) “A reviewing court may overturn the trial court’s exercise of
discretion ‘ “only upon a clear showing of abuse.” ’ [Citations.]” (Ibid.)
Defendant contends the trial court committed such an abuse of discretion for
several reasons.
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First, he argues, because the Nevada County Sheriff’s Office witness who
testified, Candy Poulter, did not herself make the license report, the report was not
admissible under Evidence Code section 1271. But Evidence Code section 1271 does not
require the particular person who prepared the writing to testify. It requires a “custodian
or other qualified witness,” and a qualified witness “need not be . . . the person who
created the record.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322-324.) Although
Poulter did not input all the license report entries, the trial court was well within its
discretion in finding her a qualified witness to provide the foundational basis for the
report. Poulter testified that she was the records supervisor at the Nevada County
Sheriff’s Office, she had been in the position for about 18 months, and her department
held all the office’s records involving concealed carry licenses. Her testimony also
demonstrated that she was familiar with the concealed carry license reports, was familiar
with how these reports were made, and had herself input entries into license reports. The
trial court did not abuse its discretion in finding Poulter a qualified witness on these facts.
Second, defendant contends Poulter’s testimony failed to show the license report
exhibited the requisite trustworthiness. Although defendant’s trial counsel argued the
report was untrustworthy for several reasons, on appeal, defendant relies on a single
discrepancy to make this argument: the report did not show whether the Department of
Justice had been informed of the suspension of defendant’s license in July of 2012, even
though the sheriff’s office was legally required to notify the Department of Justice about
the suspension. (See § 26225, subd. (b).) But this detail does nothing to show the report
lacked trustworthiness. It simply reflects an apparent fact—the Nevada County Sheriff’s
Office, although required to notify the Department of Justice about the July 2012
suspension, apparently neglected to do so. Indeed, a Department of Justice witness
testified that, at the time of defendant’s arrest in April of 2013, the Department of Justice
had no records showing that defendant’s license had been suspended—something it
would have had if the sheriff’s office had actually reported the suspension. (See § 11106,
9
subd. (a)(1)(C).) It instead only had a copy of defendant’s license. In any event, to the
extent defendant has shown an omission in the license report, it is not one that warrants
finding an abuse of discretion. Although the court was required to find the report
sufficiently trustworthy, it was not required to find the report flawless. (People v.
Hovarter (2008) 44 Cal.4th 983, 1011 [“that a business record contains some omissions
does not necessarily render unreliable the information the record includes”].)
Finally, as to hearsay, defendant argues the trial court employed the wrong test in
evaluating whether the report was sufficiently trustworthy. According to defendant, the
court found questions about the report’s trustworthiness went to its weight rather than its
admissibility. But that is not a fair characterization. The court instead noted that
arguments about mistakes in the report (e.g., that inputted data was out of order) would
go to weight rather than admissibility, and it did not err in saying as much. Although true
that a showing of trustworthiness is a prerequisite to admitting records under Evidence
Code section 1271 and 1280, questions about mistakes in data entry go to weight, not
admissibility. (See People v. Martinez (2000) 22 Cal.4th 106, 132; see also United States
v. Catabran (9th Cir. 1988) 836 F.2d 453, 458 [questions “as to the accuracy of
[computer] printouts, whether resulting from incorrect data entry or the operation of the
computer program, as with inaccuracies in any other type of business records, . . . [affect]
only the weight of the printouts, not their admissibility”].)2
2 In his reply brief, defendant raises several new arguments as to why the license
report was inadmissible hearsay. He claims the report was not made in the regular course
of public employment but rather was prepared by the sheriff’s secretary for purposes of
litigation. He claims the report entries were not made contemporaneously. And he
claims Poulter was not the custodian of the license report. Although defendant did allege
some of the facts underlying these arguments in his opening brief, he made none of these
legal arguments. Because defendant raises these arguments for the first time in his reply
brief, without good cause, we will not consider them. (See Neighbours v. Buzz Oates
Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
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B. Confrontation Clause Claims
The confrontation clause comes from the Sixth Amendment, which provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” (U.S. Const., 6th Amend.) It applies to both federal and state
prosecutions, and generally bars admission of “testimonial” hearsay against a defendant
“unless (1) the declarant is unavailable to testify and (2) the defendant had a previous
opportunity to cross-examine the witness or forfeited the right by his own wrongdoing.”
(People v. Sanchez (2016) 63 Cal.4th 665, 680.) In determining whether a statement is
“testimonial” within the meaning of the confrontation clause, “the question is whether, in
light of all the circumstances, viewed objectively, the ‘primary purpose’ of the
conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ [Citation.]”
(Ohio v. Clark (2015) 576 U.S. 237, 245 [192 L.Ed.2d 306].)
According to defendant, the trial court violated the confrontation clause by failing
to produce the witnesses who input the data into the license report. But defendant fails to
show that the license report included any statements that were “testimonial” in nature.
His opening brief claims the license report includes testimonial statements in violation of
the confrontation clause, but never clearly explains why. His reply brief is a little better.
Although there he claims the report was prepared for litigation, he offers no record
citations to support the claim.
We find defendant’s claims unsupported. As Poulter testified, the Nevada County
Sheriff’s Office staff enter notes in the license reports to track events relating to licenses
and license applications. Preparation of these license reports thus reflects an effort to
document the status of concealed carry licenses and applications, not to “ ‘creat[e] an out-
of-court substitute for trial testimony.’ ” (Ohio v. Clark, supra, 576 U.S. at pp. 244-245.)
Although license reports may at times become relevant evidence in a criminal trial, that
fact is not enough. Because defendant has not shown these reports to be prepared for the
11
“primary purpose” of being offered at trial, his argument under the confrontation clause
fails.3
IV
Admission of Candy Poulter’s Testimony
Defendant next contends the trial court should have stricken Candy Poulter’s
testimony because she relied on handwritten notes that were not provided to the defense
in violation of Evidence Code section 771. Because his current argument under Evidence
Code section 771 was not raised at trial, however, we find it to be forfeited on appeal.
Evidence Code section 771, subdivision (a) provides—subject to one exception
not relevant here—that “if a witness, either while testifying or prior thereto, uses a
writing to refresh his memory with respect to any matter about which he testifies, such
writing must be produced at the hearing at the request of an adverse party and, unless the
writing is so produced, the testimony of the witness concerning such matter shall be
stricken.”
Defendant raises this provision on appeal with respect to certain handwritten notes
that Poulter had brought to the witness stand. Poulter testified she had received a copy of
the prosecutor’s questions in advance of testifying and had handwritten notes about how
to respond because she was “very nervous” about testifying. She at one point mentioned
she had these notes with her at the witness stand, and in response, the court said, “[l]et’s
let the lawyer take a look at it.” According to the transcript, defense counsel then
3 Defendant also claims, in his argument about the license report, that Poulter was
not qualified to render an opinion as to whether defendant had a valid concealed carry
license on the date of his arrest. But defendant offers only this bare conclusion without
explaining why this is so. Defendant also raises this argument in a section that, according
to its heading, is about the wrongful admission of the license report, not the admissibility
of Poulter’s testimony. Because of these shortcomings, the argument is forfeited. (See
Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34
Cal.App.4th 1826, 1830, fn. 4.)
12
“view[ed] the witness’s document.” Defense counsel later asked Poulter whether she
reviewed the notes during questioning, but Poulter said she had not.
During a later break in testimony, defense counsel argued he was entitled to copies
of Poulter’s notes, but not because she had reviewed them to refresh her memory.
Although he did ask Poulter whether she had reviewed her notes during her testimony,
after she answered she had not, he did not raise that particular issue further. He instead
phrased his right to see the notes as a general discovery issue. Under the criminal
discovery statute, Penal Code section 1054.1, a prosecutor must disclose, if in her
possession or if she knows it is in the possession of the investigating agencies, all
“relevant real evidence seized or obtained as a part of the investigation,” any exculpatory
evidence, and various other materials and information. (See also Brady v. Maryland
(1963) 373 U.S. 83, 87-88 [10 L.Ed.2d 215].) Along these lines, defense counsel at trial
argued that when a testifying law enforcement officer has notes, the defense has a right to
see those notes. He later added he had a right to see Poulter’s notes because “I don’t
know whether or not [the notes] contain new information. . . .”
Based on this argument, the court ultimately agreed that the prosecution, under its
discovery obligations, would be required to disclose the notes if they contained any new
substantive information. The prosecutor responded this was not quite true because she
did not have copies of Poulter’s notes and did not even know of the notes until Poulter
testified. But she nonetheless agreed to review the notes and after doing so, informed the
court and defense counsel that they included no new information. Defense counsel did
not pursue the issue further.
Now on appeal, defendant attempts to resuscitate the issue with a new argument,
claiming the trial court violated Evidence Code section 771 by refusing defense counsel
access to Poulter’s notes that she used to refresh her recollection. Defendant’s argument
fails in several respects. First, the record belies defendant’s claim that his counsel was
refused access to Poulter’s notes. As the record reflects, the court offered defense
13
counsel an opportunity to “take a look” at the notes, and in response, defense counsel
“view[ed] the witness’s document.” More importantly, however, defendant cannot object
on one basis at the trial level, waive that objection at trial, and then raise a new objection
on appeal that the parties below never had the opportunity to address. “ ‘As a general
rule, theories not raised in the trial court cannot be asserted for the first time on appeal.’ ”
(Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) That is
particularly true when the issue has already been forfeited. Although at trial defense
counsel originally expressed concern that Poulter’s notes may contain discoverable new
substantive information, when the prosecution said they did not, defense counsel declined
to pursue the issue further. We thus find defendant’s current argument under Evidence
Code section 771 forfeited.
V
California’s Concealed Weapons Laws and the Second Amendment
Finally, defendant mounts a facial challenge under the Second Amendment to
California’s licensing scheme for concealed firearms.
The Second Amendment, which has been found applicable to the states by virtue
of the Fourteenth Amendment, 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.” (U.S. Const., 2d Amend.; see also McDonald v. City of Chicago (2010) 561
U.S. 742, 791 [177 L.Ed.2d 894] [the Second Amendment applies to the states].)
According to defendant, California’s licensing laws for concealed firearms
unconstitutionally burden the Second Amendment right to bear arms without an adequate
justification, though he offers no facts to support the claim.
Other defendants have raised similar challenges to California’s licensing laws for
concealed firearms—all without success. In People v. Yarbrough (2008) 169
Cal.App.4th 303 (Yarbrough), for example, the court found state laws restricting the right
to carry concealed firearms do not implicate the Second Amendment. (Id. at p. 314.)
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More recently, the Ninth Circuit in Peruta v. County of San Diego (9th Cir. 2016) 824
F.3d 919, sitting en banc and also considering California’s concealed carry laws, found
the same: “[T]he Second Amendment—whatever the scope of that protection may be—
simply does not extend to the carrying of concealed firearms in public by members of the
general public.” (Id. at p. 927.)
Both courts, in reaching their decisions, relied heavily on the Supreme Court’s
“watershed case interpreting the Amendment”: District of Columbia v. Heller (2008) 554
U.S. 570 [171 L.Ed.2d 637] (Heller). (Peruta, supra, 824 F.3d at p. 927.) In Heller, the
court found the District of Columbia’s “ban on handgun possession in the home violates
the Second Amendment, as does its prohibition against rendering any lawful firearm in
the home operable for the purpose of immediate self-defense.” (Heller, at p. 635.) But
the court was careful to limit its holding in contexts outside the home. Most importantly,
the court wrote that “[l]ike most rights, the right secured by the Second Amendment is
not unlimited. From Blackstone through the 19th-century cases, commentators and
courts routinely explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose. [Citations.] For
example, the majority of the 19th-century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under the Second Amendment
or state analogues. [Citations.]” (Id. at p. 626.)
Relying in large part on this discussion, the court in Yarbrough found “the
prohibition ‘on the carrying of a concealed weapon without a permit, continues to be a
lawful exercise by the state of its regulatory authority notwithstanding the Second
Amendment.’ [Citation.]” (Yarbrough, supra, 169 Cal.App.4th at p. 314.)
The court in Peruta agreed, but first expanded on the Heller court’s historical
analysis of past laws regulating the carrying of concealed weapons. Because the Heller
court found the Second Amendment “codified a right ‘inherited from our English
ancestors’ ” (Heller, supra, 554 U.S. at p. 599), the Peruta court began with a discussion
15
of the historic right to bear arms in England. This history, the court found, demonstrated
that carrying a concealed firearm in public was historically not allowed in England.
(Peruta, supra, 824 F.3d at p. 932.) The court noted, for example, a 1541 English statute
that prohibited “carrying concealable (not merely concealed) weapons, such as ‘little
shorte handguns and little hagbutts,’ and guns ‘not of the lengthe of one whole Yarde or
hagbutt or demyhake beinge not of the lenghe of thre quarters of a Yarde.’ [Citations.]”
(Id. at pp. 930-931.) The court also noted similar later prohibitions against the carrying
of concealed weapons in the sixteenth, seventeenth, and eighteenth centuries. (Id. at pp.
931-932.) In sum, the court found, “by the end of the eighteenth century, when our
Second Amendment was adopted, English law had for centuries consistently prohibited
carrying concealed (and occasionally the even broader category of concealable) arms in
public.” (Id. at p. 932.)
The court next considered the right to carry concealed weapons in the American
colonies and in the early states. Reviewing the historical record on concealed weapons in
the American colonies, the court found nothing there that differed significantly from the
law in England. (Peruta, supra, 824 F.3d at p. 933.) Finally, reviewing state law around
the time of the adoption of the Fourteenth Amendment, the court found that there too the
consensus of state laws and state courts did not stray from England’s historical
prohibition on concealed weapons. (Id. at pp. 933-939.) State courts in this time period
that considered laws forbidding concealed firearms, for example, all found the laws
consistent with the Second Amendment and their state Constitutions, with only one short-
lived exception. (Id. at p. 939.) That one exception was a Kentucky court, which found a
law prohibiting concealed weapons violated the state’s Constitution. (Id. at p. 935.)
Shortly after the decision, however, Kentucky amended its Constitution to clarify that the
state could pass laws forbidding the carrying of concealed weapons. (Id. at pp. 935-936.)
Finally, and perhaps most important of the cases in this time period, the United States
Supreme Court in Robertson v. Baldwin (1897) 165 U.S. 275 [41 L.Ed. 715]
16
acknowledged, although in dicta, that “the right of the people to keep and bear arms (art.
2) is not infringed by laws prohibiting the carrying of concealed weapons.” (Id. at pp.
281-282.)
In light of this history, the court in Peruta found “the Second Amendment right to
keep and bear arms does not include, in any degree, the right of a member of the general
public to carry concealed firearms in public.” (Peruta, supra, 824 F.3d at p. 939.)
We find the Peruta court’s analysis persuasive. As the court in Heller found, the
Second Amendment “codified a right ‘inherited from our English ancestors’ ” (Heller,
supra, 554 U.S. at p. 599), and our English ancestors historically had no right to carry
concealed weapons. Consistent with this English history, courts in the early states—with
one short-lived exception—agreed that members of the general public could be
prohibited from carrying concealed weapons consistent with the Second Amendment and
state Constitutions. Given this history, we find that defendant has no constitutional right
to carry a concealed weapon under the Second Amendment.4
4 In one California case, People v. Ellison (2011) 196 Cal.App.4th 1342, the court
assumed that a state law prohibiting the carrying of a concealable firearm in a vehicle
was within the scope of the Second Amendment and opted to review the law under the
“ ‘intermediate scrutiny’ ” standard. (Id. at p. 1347.) Applying this standard, the court
found the prohibition constitutional because it “d[id] not substantially burden defendant’s
exercise of his Second Amendment right.” (Id. at p. 1351.) We, however, are persuaded
that the laws here fall outside the reach of the Second Amendment, and thus we need not
evaluate whether they pass intermediate or heightened scrutiny.
17
DISPOSITION
The judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
DUARTE, J.
/s/
RENNER, J.
18