Filed 10/6/23; Modified and Cert. for Partial Pub. 10/31/23 (order attached); names redacted in
opinion per order
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ZACHARY H., D081250
Plaintiff and Respondent,
v. (Super. Ct. No. 22FDV01972N)
TERI A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Sara Kirby, Commissioner. Affirmed.
Oscar Valencia for Defendant and Appellant.
Decker Law and James D. Decker for Plaintiff and Respondent.
This case involves a complicated relationship between a mother, Teri
A., and her son, Zachary H. Throughout his high school and college years,
Zachary H. felt that Teri A. attempted to exercise control over his life,
including his romantic relationships and income. During a tense period in
their relationship, Zachary H. moved out of Teri A.’s home and informed her
that he did not want to have further contact. Over Zachary H.’s repeated
objections, Teri A. continued to reach out to him by mail, text message, e-
mail, and by showing up to his home unannounced. Zachary H. claimed that
after he moved out, Teri A. nearly ran him over with her car as he walked
along the sidewalk near his residence. Following this incident, Teri A. sent
Zachary H. a series of e-mails that caused him significant emotional distress.
In one e-mail she called him pathetic, and in another she discussed her newly
developed interest in firearms.
Immediately after receiving Teri A.’s e-mail referencing firearms,
Zachary H. sought a domestic violence restraining order (DVRO). During the
DVRO hearing, the trial court found Zachary H.’s testimony—describing Teri
A.’s repeated unwanted contact and the incident in which she nearly ran him
over—to be credible. It concluded that the evidence established Zachary H.
was in reasonable apprehension of imminent serious bodily harm and issued
a DVRO for a period of one year, including a related firearms prohibition.
On appeal, Teri A. claims the trial court abused its discretion by
issuing the DVRO because it was not supported by substantial evidence and
because the DVRO resulted from evidentiary errors by the trial court. She
further contends the firearms prohibition violated her constitutional rights
under the Second and Fourteenth Amendments to the United States
Constitution. As we discuss, we conclude the court did not abuse its
2
discretion when it issued the DVRO. We further determine that the
firearms restriction issued in conjunction with the DVRO was constitutional.
We therefore affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Zachary H. filed a request for a DVRO against Teri A. in April 2022.
The trial court held a hearing that took place on two nonconsecutive days in
August and October 2022. Both parties testified at the hearing.
During Zachary H.’s testimony, he provided the court with the
background of his relationship with Teri A. He described incidents of
violence throughout his childhood in which Teri A. hit him with a wooden
spoon, slapped him with a wet hand, and made him kneel on uncooked rice
that she scattered on the floor. Zachary H. alleged that while he was in
college, Teri A. took his paychecks and cashed them without his consent. He
felt that Teri A.’s behavior was aimed at manipulation and control, including
her attempts to influence his romantic relationships.
In October 2020, Zachary H. informed Teri A. that he intended to move
out of her home at the end of the month. In response, Teri A. told him, “ ‘No,
you’re not, get your shit now and get the hell out of my house.’ ” Zachary H.
moved out of Teri A.’s home to an apartment complex nearby. Although he
did not share the location of his new residence with Teri A., she sent Zachary
H. a text message a few weeks later stating, “[H]ave fun at [the name of
Zachary H.’s new apartment complex].” Zachary H. testified that Teri A.’s
text message “created a great sense of emotional distress and mental
distress, because [he] didn’t feel safe.” Following her text message, Zachary
H. told Teri A. that he did not want to have any further contact with her.
In July 2021, Teri A. went to Zachary H.’s home unannounced.
Although Zachary H. did not interact with Teri A., he observed her standing
3
at his front door through his Ring door camera. Less than two weeks later,
Teri A. again went to Zachary H.’s residence unannounced, this time on his
birthday. Teri A. left a present at his doorstep and Zachary H. observed her
“pacing back and forth and then ultimately going up and pounding on what
actually was [Zachary H.’s] neighbor’s window.” Again in August, Teri A.
went to Zachary H.’s home unannounced for a third time and dropped off
some of Zachary H.’s childhood belongings. Zachary H. felt unsafe and
emotionally distressed because Teri A. repeatedly ignored his requests to stay
away and refrain from contacting him.
In October 2021, Zachary H. and his girlfriend encountered Teri A.
driving her vehicle as they walked along a sidewalk. They hid in a bush to
avoid her and then ran towards their apartment building. Teri A. made a U-
turn and drove onto the curb, nearly running them over. As Zachary H.
started to film Teri A. using his cell phone’s camera,1 he heard her giggle and
say “run, [Zachary H.’s girlfriend], run, run, [Zachary H.], run, run . . . .” Teri
A. got out of her vehicle and continued to follow Zachary H. on foot. Zachary
H. testified he “was scared for [his] life at that point” because Teri A.
attempted to hit him with her car.
Two days later, Zachary H. again encountered Teri A. in her vehicle as
he walked along the sidewalk. She slowed her car as she drove in the center
median, and attempted to communicate something to Zachary H. Zachary H.
testified that Teri A. was smiling and laughing at him. He felt terrified by
the experience and no longer felt safe walking outside alone.
1 The video recording was admitted into evidence and reviewed by the
trial court. The court noted that the video did not record most of the incident
in the manner described by Zachary H., showing only the sidewalk as
Zachary H. ran away. The court specifically found, however, that Teri A.
could be heard at the beginning of the video saying the word “run.”
4
Two months later, in December 2021, Teri A. went to Zachary H.’s
home unannounced. She left an easter basket from Zachary H.’s childhood at
his doorstep. Through his Ring camera, Zachary H. observed Teri A. bend
down and examine mail that was left at his front door.
In response to her repeated unwanted contact, Zachary H. e-mailed
Teri A. and told her, “[S]top leaving objects in the way of my apartment. You
are not welcome here and I do not want any contact with you as well as my
roommate. Examining mail that is not mine is not welcomed either. Do not
harass me while I walk down the road either as there is no justifiable reason
to be doing so.” Teri A. continued to e-mail Zachary H. from January through
March 2022.
On March 10, Zachary H. arrived home and noticed Teri A.’s vehicle
“inching slowly next to the curb by [his] apartment.” He started recording
the incident and Teri A. drove away. Later that day, Teri A. sent Zachary H.
an e-mail that said, “you are pathetic” in the subject line, and “truly pathetic”
in the body of the e-mail. Zachary H. testified he felt distressed because “she
was not respecting [his] wishes that [he] had stated multiple times at this
point to refrain from contact.”
On April 29, 2022, Teri A. sent Zachary H. and his sister a series of e-
mails. The first e-mail contained images of a text message exchange between
Teri A. and a third party. Teri A. and the third party discussed parenting
and she expressed gratitude to the third party for his advice regarding
firearms. Teri A. sent a second e-mail later that day stating, “I did forget to
mention that in my first e-mail today I talk about guns. Yes I am shooting
now and I am part of [A Girl & A Gun] nationwide group. Tony and I talk
guns now. [¶] I am good with a pistol but prefer an AR.”
5
Zachary H. was “extremely distressed” by Teri A.’s e-mail discussing
firearms because she was previously “anti-firearms.” He felt that Teri A.’s
reference to firearms was “utilized as an intimidation factor, as a scare
tactic.” Within thirty minutes of receiving the e-mail, Zachary H. went to the
courthouse to seek a restraining order. Zachary H. testified that his sister
also sought and obtained a restraining order against Teri A. in the state of
Arizona. The trial court took judicial notice of the restraining order involving
Zachary H.’s sister.
In her testimony, Teri A. denied Zachary H.’s claims that she was
physically violent with him during in his childhood. Rather, she claimed that
Zachary H.’s father was an alcoholic and that the violent episodes testified to
by Zachary H. were perpetrated by his father. Teri A. felt her relationship
with Zachary H. became strained after her divorce from his father, and
further deteriorated when Zachary H. began dating his girlfriend.
Teri A. told the court that when Zachary H. moved out of her residence,
he rented an apartment in a complex less than a mile away. Due to his close
proximity to her home, Teri A. encountered Zachary H. while driving her
vehicle because he walked along the “path in and out of [her] neighborhood.”
She explained that she learned of Zachary H.’s new address because she
received notice from the post office. She repeatedly dropped off Zachary H.’s
belongings at his apartment because she found the items as she cleaned out
her garage in segments.
Teri A. also testified regarding the October 2022 incident in which
Zachary H. claimed she nearly ran him over with her car. She explained that
she attempted to contact Zachary H. as he walked along the sidewalk to
inform him that her aunt passed away. Teri A. claimed that as she
attempted to tell Zachary H. about her aunt’s funeral through the car
6
window, he ran down the sidewalk “laughing and giggling and ducking
behind cars.” She denied attempting to run him over and claimed that it
would have been impossible for her to drive onto the curb because there were
cars parked along the sidewalk.
Teri A. also provided context for the e-mails she sent to Zachary H. and
his sister discussing firearms. She testified that she sent the text message
exchange so that her children could see a different perspective regarding
their relationship and the difficulty of parenting. Her purpose in sending the
e-mail referencing her preference for an “AR” over a pistol was to convey to
her children that she had moved on her with life and was exploring other
interests.
Following Teri A.’s testimony, the trial court rendered its decision.
In deciding to issue the requested restraining order, the court expressly found
Zachary H. to be credible, including his testimony that he repeatedly told
Teri A., orally and in writing, to leave him alone. It determined that the
evidence clearly established Zachary H. did not want to be contacted by Teri
A., and that Teri A. understood Zachary H.’s request for no-contact but “just
didn’t think that she should listen to that or that she thought she knew
better.” The court did not believe Teri A.’s contact with Zachary H. during
these incidents was “an issue of being in the same neighborhood and
accidentally coming upon somebody.” Rather, it characterized the case as one
in which Teri A. intentionally and repeatedly interacted with Zachary H.
after he expressly communicated that he did not want to have any contact.
The court also believed Zachary H.’s testimony regarding the October
2022 incident in which Teri A. “nearly ran over [Zachary H.] and his
girlfriend.” In its view, the evidence established that Zachary H. was in
“reasonable apprehension of imminent serious bodily injury to himself or
7
another regarding that October 16th incident about driving up on the curb
and nearly—per [Zachary H.’s] testimony, nearly running him over and his
girlfriend over that day.” By a preponderance of the evidence, it found that
Zachary H. met his burden of demonstrating his need for a DVRO.
The court granted Zachary H.’s request for a permanent restraining
order and issued the DVRO for a period of one year. As a result of the
restraining order, the court prohibited Teri A. from owning, possessing, or
having access to any firearms or ammunition while the DVRO was in effect.
DISCUSSION
Teri A. contends the DVRO was not supported by substantial evidence
such that its issuance was an abuse of the trial court’s discretion. Relatedly,
she argues the trial court erred on several evidentiary matters, including
improperly taking judicial notice of an out-of-state restraining order issued
for the protection of Teri A.’s daughter, and allowing Zachary H. to introduce
three exhibits not included in his exhibit list. Finally, she objects to the
firearms prohibition issued in conjunction with the DVRO on various
constitutional grounds. As we discuss, we perceive no reversible error in the
evidence considered by the trial court and determine the court did not abuse
its discretion in granting Zachary H.’s request for a DVRO. As to the
firearms restriction, we conclude that the order prohibiting Teri A. from
possessing a firearm or ammunition, and the statute authorizing the issuance
of the restriction, are constitutional. We therefore affirm.
8
A. The Trial Court Did Not Abuse its Discretion in Granting the DVRO
The Domestic Violence Protection Act (DVPA) (Fam. Code,2 § 6200 et
seq.) authorizes a court to issue a protective order “ ‘ “to restrain any person
for the purpose of preventing a recurrence of domestic violence and ensuring
a period of separation of the persons involved” upon “reasonable proof of a
past act of acts of abuse.” ’ ” (In re Marriage of Davila and Mejia (2018) 29
Cal.App.5th 220, 225.) “Abuse includes ‘plac[ing] a person in reasonable
apprehension of imminent serious bodily injury to that person or to another’
or ‘engag[ing] in any behavior that has been or could be enjoined pursuant to
Section 6320.’ [Citation.] Enjoined conduct includes molesting, striking,
stalking, threatening, or harassing. [Citation.] The DVPA requires a
showing of past abuse by a preponderance of the evidence.” (Id. at p. 226;
accord § 6320, subd. (a).)
“We review an order granting or denying a DVRO for abuse of
discretion. [Citation.] In reviewing the trial court’s factual findings, we
apply the substantial evidence rule. [Citation.] The inquiry is whether
substantial evidence supports the court’s finding, not whether a contrary
finding might have been made. [Citation.] We accept as true all evidence
tending to establish the correctness of the trial court’s findings and resolve
every conflict in favor of the judgment.” (M.S. v. A.S. (2022) 76 Cal.App.5th
1139, 1143–1144.)
Teri A. argues the trial court’s order was not supported by substantial
evidence because the court improperly interpreted Teri A.’s “benign behavior”
as abuse under the DVPA. She urges us to reject the court’s credibility
findings pertaining to Zachary H.’s testimony because it “accepted statements
from [Zachary H.] without truly examining their validity.” In support of her
2 Unspecified statutory references are to the Family Code.
9
argument, Teri A. emphasizes her own testimony, which proffered competing
explanations of the events testified to by Zachary H.3
During the hearing, the trial court expressly found Zachary H. to be
credible, specifically including his testimony about how Teri A. drove her
vehicle onto a curb and nearly ran over Zachary H. and his girlfriend. As a
result of this incident, it properly concluded that Teri A.’s conduct qualified
as abuse under the DVPA because it placed Zachary H. “in reasonable
apprehension of imminent serious bodily injury.” (§ 6203, subd. (a)(3).)
Although Teri A. argues that Zachary H.’s testimony, which she characterizes
as “unsupported,” provided insufficient evidence to justify the issuance of the
DVRO, the testimony of a single witness may constitute substantial evidence
to support a finding of fact. (In re Marriage of F.M. & M.M. (2021) 65
Cal.App.5th 106, 119 (F.M. & M.M.) [“ ‘The testimony of one witness, even
that of a party, may constitute substantial evidence’ ”].) Thus, Zachary H.’s
testimony that Teri A. placed him in apprehension of serious bodily injury
when she nearly hit him with her car provided substantial evidence of abuse
under the DVPA.
Teri A.’s argument that Zachary H.’s apprehension of harm was not
reasonable under the circumstances, considering that he moved less than a
mile away from her home, asks us to disregard the trial court’s credibility
findings and reweigh the evidence. We decline to do so. “[T]rial courts are in
3 In her opening brief on appeal, Teri A. cites to unpublished case law in
violation of the California Rules of Court, rule 8.1115. She asserts that rule
8.1115(b) permits her to cite to unpublished authority in this case. However,
rule 8.1115(b) permits citation to an unpublished opinion only when the
opinion is relevant under the doctrines of the law of the case, res judicata,
collateral estoppel, or when the opinion is relevant to a criminal or
disciplinary action. None of the enumerated exceptions in rule 8.1115(b)
apply to this case and we decline to consider this authority.
10
the best position to assess witness credibility” and therefore we must
generally defer to their credibility determinations. (Doe v. Lee (2022) 79
Cal.App.5th 612, 621; accord Sabbah v. Sabbah (2007) 151 Cal.App.4th 818,
823 [“ ‘We must accept as true all evidence . . . tending to establish the
correctness of the trial court’s findings . . . , resolving every conflict in favor of
the judgment.’ ”].) We also note that during his testimony, Zachary H.
provided context for his decision to move to an apartment complex near Teri
A.’s home, explaining that there were limited apartments available during
the COVID-19 pandemic and the residence he ultimately rented was the only
one available to him during that time.
Further, although the trial court did not expressly find that Teri A.’s
conduct disturbed Zachary H.’s peace, we conclude substantial evidence
supports such an implied finding as an additional basis for the issuance of
the DVRO. Under the DVPA, abuse includes conduct that, under the totality
of the circumstances, “ ‘disturb[s] the peace of the other party’ ” in a way that
“destroys the mental or emotional calm of the other party.” (§ 6320, subd. (c);
see also In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497
[“ ‘[D]isturbing the peace of the other party’ ” refers to conduct that, based on
the totality of the circumstances, “destroys the mental or emotional calm of
the other party.”].) Repeated unwanted contact by phone, e-mail, and text,
and unannounced home visits following a request of no-contact, may
constitute disturbing someone’s peace under section 6320. (Burquet v.
Brumbaugh (2014) 223 Cal.App.4th 1140, 1144.)
Zachary H. testified that Teri A. repeatedly contacted him after he
expressed to her, orally and in writing, that he did not wish to have any
further interaction. Despite his requests, she continued to e-mail Zachary H.
and go to his home unannounced. Zachary H. testified that the recurring
11
unwanted contact caused him mental and emotional distress. Zachary H.’s
testimony, and the video recordings of Teri A.’s visits to his home, are ample
evidence of conduct that disturbed Zachary H.’s peace. Although Teri A.
claimed she was simply attempting to communicate with her son to discuss
family matters and to deliver family heirlooms, the trial court was not
required to credit Teri A.’s testimony over that of Zachary H. (F.M. & M.M.,
supra, 65 Cal.App.5th at p. 119 [“ ‘A trier of fact is free to disbelieve a
witness . . . if there is a rational ground for doing so.’ ”].)
Finally, we do not perceive any abuse of discretion in the evidence
considered by the trial court in rendering its decision, including its judicial
notice of an out-of-state restraining order issued against Teri A. (See
Physicians Committee for Responsible Medicine v. Los Angeles Unified School
Dist. (2019) 43 Cal.App.5th 175, 182 [“We review judicial notice rulings for
abuse of discretion”].) As Teri A. acknowledges in her opening brief, Evidence
Code section 452 permitted the trial court to take judicial notice of the
restraining order as a record from a “court of record of the United States or of
any state of the United States.” (Id., subd. (d).) Although the trial court was
not permitted to judicially notice the truth of any factual assertions within
the DVRO (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396 [“[w]e can
take judicial notice of the fact the pleadings were filed, but not of the truth of
the statements contained in them”]), there is no evidence in the record to
suggest the trial court improperly considered the statements within the
order. Further, during her own testimony, Teri A. admitted that her
daughter obtained the judicially noticed restraining order against her. To the
extent Teri A. suggests the order was not properly authenticated, she
forfeited this argument by failing to object on these grounds in the trial court.
12
(See People v. Sims (1993) 5 Cal.4th 405, 448 [appellant forfeited
authentication argument by failing to object at trial].)
Nor do we find merit in Teri A.’s argument that the court’s
consideration of three exhibits not included in opposing counsel’s exhibit
list—exhibits 11, 12, and 13 (videos of Teri A. near Zachary H.’s home)—
violated her due process rights. The record does not indicate these exhibits
were ever formally admitted, but assuming they were considered by the
court, we perceive no abuse of discretion in the decision to admit them.
(McDermott Ranch, LLC v. Connolly Ranch, Inc. (2019) 43 Cal.App.5th 549,
559 [“We review a trial court’s decision to admit evidence for abuse of
discretion.”].) Although it does not appear that Zachary H.’s counsel complied
with Superior Court of San Diego County, Local Rules, rule 5.5.5(C), which
required counsel to timely serve a notice of their intent to lodge that included
a description of their exhibits, Teri A. cites to no authority suggesting that
the court has no discretion to excuse such a failure. In any event, considering
that the exhibits were only seconds long and provided to opposing counsel
prior to the hearing, and that Zachary H. independently described the events
depicted in the exhibits, we conclude that any purported error related to the
admission of the evidence was not prejudicial. (F.M. & M.M., supra, 65
Cal.App.5th at p. 118 [to establish prejudicial error relating to the admission
of evidence at a DVRO hearing, the appellant must demonstrate a
“ ‘ “ ‘reasonable probability that in the absence of . . . error, a result more
favorable to the appealing party would have been reached’ ” ’ ”].) The trial
court expressly based its findings on Zachary H.’s testimony, which the court
found to be credible, and therefore the absence of the video evidence would
not have resulted in a more favorable result for Teri A.
13
In sum, we conclude the trial court’s findings were supported by
substantial admissible evidence of abuse under the DVPA. Accordingly, we
perceive no abuse of discretion in the issuance of the DVRO and we affirm the
order.
B. The Firearms Prohibition Did Not Violate Teri A.’s Constitutional Rights
Teri A. argues for the first time on appeal that the firearms prohibition
imposed by the trial court violated her Second Amendment rights. She
contends that because the court’s order did not allow her to possess a firearm
for self-protection, the order conflicts with the United States Supreme Court’s
decision in N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. ___ [142
S.Ct. 2111] (Bruen). According to Teri A., had the trial court prohibited her
from possessing a firearm in public, but allowed her to possess a firearm in
her home for self-protection, the order would have passed constitutional
muster. She additionally argues that because section 6389, subdivision (h)
provides an exception to the firearms relinquishment requirement based on
employment, but not based on the need for self-protection, the statute
violates the equal protection clause of the Fourteenth Amendment. As we
discuss, we disagree with Teri A.’s assertions and conclude the firearms
prohibition imposed by the trial court, and the statute on which it was based,
are constitutional.
As a preliminary matter, we make clear that we do not consider Teri
A.’s “as-applied” challenge to the firearms restriction because she forfeited
this claim by failing to object in the trial court. (People v. Patton (2019) 41
Cal.App.5th 934, 946 (Patton) [“An as-applied constitutional challenge is
forfeited unless previously raised.”].) We construe Teri A.’s claim to be, at
least partially, an as-applied challenge because she asserts the need for an
exception to the firearms restriction based on a purported individualized need
14
for self-protection and her desire to attend “A Girl & A Gun” meetings. (In re
D.L. (2023) 93 Cal.App.5th 144 [“[A]n ‘as applied’ challenge may seek ‘relief
from a specific application of a facially valid statute or ordinance to an
individual or class of individuals who are under allegedly impermissible
present restraint or disability as a result of the manner or circumstances in
which the statute or ordinance has been applied”].) Because an as-applied
challenge asserts a “constitutional defense [that] may be correctable only by
examining factual findings in the record or remanding to the trial court for
further findings” (In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.)), it
is not appropriately raised for the first time on appeal. We do, however,
consider Teri A.’s facial challenges to section 6389 because “the forfeiture rule
does not extend to facial constitutional challenges presenting pure questions
of law that can be resolved without referring to the particular [trial] record
developed below.” (Patton, supra, 41 Cal.App.5th at p. 946; accord Sheena K.
supra, 40 Cal.4th at p. 889 [a facial constitutional challenge may be raised for
the first time on appeal].)
Section 6389 prohibits an individual subject to a DVRO from
possessing a firearm or ammunition. (§ 6389; see also § 6218.) In Altafulla v.
Ervin (2015) 238 Cal.App.4th 571 (Altafulla), this court upheld section 6389
following a Second Amendment challenge to the statute. We concluded that
section 6389 is “analogous to a prohibition on felon weapon possession,”
which is a constitutionally valid restriction on an individual’s right to possess
a firearm. (Altafulla, at p. 581.) In our discussion, we explained that the
United States Supreme Court decision in District of Columbia v. Heller (2008)
554 U.S. 570 (Heller), which held that the Second Amendment confers an
individual right to keep and bear arms, did not affect the constitutionality of
section 6389. (Heller, at pp. 581–582.)
15
The United States Supreme Court’s recent decision in Bruen, which
reaffirmed Heller’s guarantee of the right of “law-abiding responsible
citizens” to possess firearms, does not compel a different result. (Bruen,
supra, 142 S.Ct. at p. 2131.) In Bruen, the United States Supreme Court
held that New York’s public-carry licensing scheme violated the Second
Amendment because “it prevent[ed] law-abiding citizens with ordinary self-
defense needs from exercising their right to keep and bear arms.” (Id. at
p. 2156.)
Here, however, the court’s findings in issuing the DVRO demonstrate
that Teri A. is not a law-abiding citizen. Moreover, as Justice Alito
emphasized in his concurring opinion, “nothing about who may lawfully
possess a firearm” was affected by the United States Supreme Court’s
decision in Bruen, nor has it disturbed “restrictions that may be imposed on
the possession or carrying of guns.” (Bruen, supra, 142 S.Ct. at p. 2157 (conc.
opn. of Alito, J.).) Since Bruen, numerous California courts have held that
the Bruen decision does not extend to statutes prohibiting the possession of
firearms by individuals convicted of a felony, or statutes criminalizing the
possession of illegal firearms. (See People v. Alexander (2023) 91 Cal.App.5th
469, 480 [rejecting Second Amendment challenge to statutes prohibiting
individuals convicted of felonies from possessing firearms or ammunition];
People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1250 [rejecting Second
Amendment challenge to a statute prohibiting possession of an assault
weapon].) Having previously concluded in Altafulla that section 6389 is
analogous to a prohibition on “felon weapon possession,” and recognizing the
California cases that uphold the prohibition of “felon weapon possession”
post-Bruen—we conclude that Bruen does not call into question the
16
lawfulness of firearms restrictions imposed on individuals subject to
restraining orders.4
Apart from the Second Amendment, Teri A. also asserts that section
6389, subdivision (h), violates the equal protection clause of the Fourteenth
Amendment by allowing an exception to the DVRO-related firearms
prohibition based on employment, but not based on an individual’s need for
self-protection. The Fourteenth Amendment to the United States
Constitution “ ‘guarantee[s] all persons the equal protection of the laws.’ ”
(In re Williams (2020) 57 Cal.App.5th 427, 433.) An analysis of an equal
protection claim under the Fourteenth Amendment has two steps.
(Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1102.) “ ‘ “ ‘The first
prerequisite . . . is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.’
[Citations.] This initial inquiry is not whether persons are similarly situated
for all purposes, but ‘whether they are similarly situated for purposes of the
law challenged.’ ” ’ [Citation.] If the groups are similarly situated, the next
4 We recognize the Court of Appeals for the Fifth Circuit recently held
that 18 U.S.C. section 922(g)(8), a federal statute prohibiting an individual
subject to a restraining order from possessing a firearm, is unconstitutional
in light of Bruen. (United States v. Rahimi (2023) 61 F.4th 443.) As we
emphasized in Altafulla, however, “ ‘anger management issues may arise in
domestic settings,’ and a firearm restriction in such cases ‘is thus a
temporary burden during a period when the subject of the order is adjudged
to pose a particular risk of further abuse.’ ” (Altafulla, supra, 238
Cal.App.4th at p. 582.) “ ‘Reducing domestic violence is a compelling
government interest [citation], and [a] temporary prohibition, while the
[restraining] order is outstanding, is narrowly tailored to that compelling
interest.’ ” (Ibid.) Considering the compelling government interest to reduce
domestic violence that we recognized in Altafulla, we decline to follow
Rahimi. (See People v. Williams (2013) 56 Cal.4th 630, 668 [federal court of
appeal decisions are not binding on California courts].)
17
question is whether the disparate treatment can be justified by a
constitutionally sufficient state interest.” (Ibid.)
Here, Teri A.’s equal protection argument necessarily fails because
individuals seeking an exception to the firearms prohibition based on their
employment are not similarly situated with individuals who present a
generalized claim of the need to protect themselves with a firearm. Section
6389, subdivision (h) allows for a narrow exception to the firearms
prohibition mandated by subdivision (a) if the restrained party demonstrates
a firearm “is necessary as a condition of continued employment and that the
current employer is unable to reassign the [restrained party] to another
position where a firearm or ammunition is unnecessary.” Teri A. cites to no
authority suggesting this narrow class of individuals, for whom firearms are
a necessary part of their employment, are similarly situated with individuals
who generally desire a firearm to protect themselves. Nor can we find any
precedent that would support such a claim—indeed, such a conclusion would
signify that the general public is similarly situated with a group seeking
relief from a court-ordered restriction based on a narrow employment-based
statutory exception.5
5 Courts have addressed equal protections claims challenging statutory
exceptions to court-imposed firearms limitations in the context of restrictions
resulting from criminal convictions. In People v. Delacy (2011) 192
Cal.App.4th 1481, 1495, the court evaluated a criminal statute that
prohibited the possession of firearms by persons convicted of certain
California misdemeanors, but did not prohibit the possession of firearms by
persons convicted of similar offenses from other jurisdictions. Although the
court did not explicitly address whether the challenge involved similarly
situated groups, it upheld the law, concluding that the Legislature’s decision
to exclude out-of-state misdemeanants from the law did not violate equal
protection. In People v. Conley 116 Cal.App.4th 566, 574 (Conley), the court
considered an equal protection challenge to a criminal statute that permitted
relief from a firearms restriction for individuals convicted of three
18
But even assuming the “similarly situated” requirement has been met,
section 6389, subdivision (h), does not violate equal protection under the
Fourteenth Amendment. “[E]qual protection is not violated by a legislative
scheme that distinguishes between different groups of persons if the
classification bears a rational relationship to a legitimate public purpose.”
(Conley, supra, 116 Cal.App.4th at p. 574.) When a legislative classification
that distinguishes between different groups “ ‘does not involve a fundamental
right, we evaluate the classification under the ”rational basis” test.’ ” (Ibid.)
“The private right to bear arms is not a ‘fundamental’ right under the Second
Amendment to the United States Constitution” (In re Evans (1996) 49
Cal.App.4th 1263, 1270), and we therefore analyze an equal protection claim
implicating the private right to bear arms under the deferential rational
basis test. Under this test, we “uphold a statutory classification against an
equal protection challenge ‘if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.’ ” (Conley, at
p. 574.)
Here, the employment exception delineated in section 6389, subdivision
(h), permits only a limited category of individuals whose economic well-being
would be jeopardized by a firearms restriction to seek an exception to
maintain their employment. This exception is especially narrow—it allows
an individual to obtain an exception to the firearms prohibition only when
their employment requires them to possess a firearm and when they make a
showing that their employer is unable to reassign them to a position that
enumerated criminal offenses, but not for individuals convicted of other
criminal offenses. Again the court did not directly address the similarly
situated prong, but ultimately concluded that the legislative distinction
between the convictions that required a firearms restriction, and those that
did not, was constitutional. (Ibid.)
19
does not require a firearm. (§ 6389, subd. (h).) Even when an individual
makes such a showing, they are only permitted to possess a firearm during
their work hours and during travel to and from their employment. (Ibid.)
Considering that “ ‘reducing domestic violence is a compelling
government interest” (Altafulla, supra, 238 Cal.App.4th at p. 582, italics
added), the Legislature was justified in crafting such a narrow exception in
section 6389, subdivision (h). Unlike the broad exception Teri A. seeks that
would permit her to possess a gun in her home without any restrictions, the
employment-based exception in section 6389, subdivision (h), appropriately
balances the need to protect victims of domestic violence from the possibility
of gun violence, with the economic interests of the restrained party. (See U.S.
v. Hayes (2009) 555 U.S. 415, 427 [“Firearms and domestic strife are a
potentially deadly combination nationwide.”].) The limited nature of the
firearms exception in section 6389 is rationally supported by a legislative
interest in prohibiting those who have committed acts of domestic violence
from having ready access to a firearm.
We therefore affirm the affirm the order prohibiting Teri A. from
possessing a firearm while the DVRO is in effect.
20
DISPOSITION
The order is affirmed. Zachary H. is entitled to costs on appeal.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
KELETY, J.
21
Filed 10/31/23
CERTIFIED FOR PARTIAL PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ZACHARY H., D081250
Plaintiff and Respondent, (Super. Ct. No. 22FDV01972N)
v. ORDER MODIFYING OPINION
AND CERTIFYING OPINION
TERI A., FOR PARTIAL PUBLICATION
Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
The court on its own motion orders this opinion, filed on October 6,
2023, modified as follows:
1. Throughout the opinion, Appellant’s name shall now be “Teri A.”
and the Respondent’s name shall now be to “Zachary H.”
2. The first paragraph of page 2, the first sentence ending “and her son
Zachary H.” (see item 1, ante), add as footnote 1 the following
footnote, which will require renumbering of all subsequent footnotes:
We refer to Teri A. and Zachary H. by their first names for
clarity, intending no disrespect.
3. On page 16, the second sentence of the first paragraph, delete the
words “United States Supreme” to that the sentence reads:
In Bruen, the Court held that New York’s public-carry
licensing scheme violated the Second Amendment
because “it prevent[ed] law-abiding citizens with
ordinary self-defense needs from exercising their right to
keep and bear arms.”
4. On page 16, the second paragraph, beginning “Here, however,” is
deleted and the following paragraph is inserted in its place:
Here, however, the trial court’s findings in issuing
the DVRO demonstrate that Teri is not a law-abiding
citizen. Indeed, the court found Zachary’s testimony, in
which he alleged Teri nearly ran him over with her car,
to be credible. Moreover, as Justice Alito emphasized in
his concurring opinion, “nothing about who may lawfully
possess a firearm” was affected by the Court’s decision in
Bruen, nor has it disturbed “restrictions that may be
imposed on the possession or carrying of guns.” (Bruen,
supra, 142 S.Ct. at p. 2157 (conc. opn. of Alito, J.).) Since
Bruen, numerous California courts have held that the
Bruen decision does not extend to statutes prohibiting
the possession of firearms by individuals convicted of a
felony, or statutes criminalizing the possession of illegal
firearms. (See People v. Alexander (2023) 91 Cal.App.5th
469, 480 [rejecting Second Amendment challenge to
statutes prohibiting individuals convicted of felonies
from possessing firearms or ammunition]; People v.
Bocanegra (2023) 90 Cal.App.5th 1236, 1250 [rejecting
Second Amendment challenge to a statute prohibiting
possession of an assault weapon].) Having previously
concluded in Altafulla that section 6389 is analogous to a
prohibition on “felon weapon possession,” and
recognizing the California cases that uphold the
prohibition of “felon weapon possession” post-Bruen—we
conclude that Bruen does not call into question the
lawfulness of firearms restrictions imposed on
individuals subject to restraining orders.[fn]
3
5. On page 19, the fourth sentence of the first paragraph that begins
“ ‘The private right to bear arms’ ” is modified so that the sentence
reads:
“The private right to bear arms is not a ‘fundamental’
right under the Second Amendment to the United States
Constitution” (In re Evans (1996) 49 Cal.App.4th 1263,
1270), and we therefore analyze an equal protection
claim implicating the private right to bear arms by
persons subject to a restraining order under the
deferential rational basis test.
In addition, based on the sentence above, after the words “under the
deferential rational basis test,” add as footnote 7 (see item 2, ante)
the following footnote, which will require renumbering of all
subsequent footnotes:
Following the United States Supreme Court’s
decision in Heller, and its later decision in McDonald v.
City of Chicago (2010) 561 U.S. 742, the court in Delacy,
supra, 192 Cal.App.4th 1481 “called into question” the
conclusion in Evans that the private right to bear arms is
never a fundamental right. (Id. at p. 1494.) Even so,
addressing an equal protection claim by a defendant
convicted of a misdemeanor, the Delacy court
nonetheless applied a rational basis test because persons
found to have engaged in criminal misconduct “can claim
no ‘fundamental’ right that would invoke elevated
scrutiny under the equal protection clause.” (Id. at
p. 1495.) Having previously determined that Teri is not
among those law-abiding citizens for whom the Second
Amendment guarantees the right to bear arms under
Heller and Bruen, we similarly conclude the rational
basis test applies to the review of her equal protection
challenge.
There is no change in judgment.
4
FURTHER, this opinion was not certified for publication. It appearing
the opinion meets the standards for partial publication, except part A of the
discussion specified in California Rules of Court, rule 8.1100, the request
pursuant to rule 8.1120(a) for partial publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
IT IS ORDERED that the words “Not to Be Published in the Official
Reports” appearing on page one of said opinion be deleted and the opinion
herein be partially published except part A of the discussion in the Official
Reports.
O’ROURKE, Acting P. J.
Copies to: All parties
5