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Court of Appeal:
Record Insufficient to Challenge Assault Weapon Ban on Second Amendment
Opinion Says Record or Brief Must Adequately Address History, Fact-Intensive Analysis
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that a criminal defendant challenging his conviction for possession of an assault weapon on Second Amendment grounds failed to demonstrate error where the issue was not raised at the trial court and the defendant did not sufficiently brief on the underlying history and facts to enable the court to engage in the relevant analysis under current U.S. Supreme Court precedent.
The appellant challenges, in light of the June 23, 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen, a provision of the Roberti-Roos Assault Weapons Control Act of 1989 criminalizing possession of an assault weapon.
The unpublished opinion, filed Monday, was authored by Justice Jose S. Castillo. Acting Presiding Justice Joan Irion and Justice Truc T. Do joined in the opinion.
Possession of Firearms
Appealing his conviction was a homeless military veteran, Perry Olson. In June 2022, two San Diego Police Department officers contacted Olson, who was sleeping in the back of his vehicle, due to the expired registration of the vehicle.
As Olson gathered his belongings, one officer noticed a firearm in Olson’s waistband, which was seized and found to be loaded. In a rifle bag, the officers found a shotgun, ammunition, and a semiautomatic assault rifle.
Olson waived his right to a jury trial and testified at the March 2023 bench trial that, although he held firearm permits in other states, he had just arrived in California about a week before his arrest and had not yet had time to comply with California gun laws.
San Diego Superior Court Judge David Berry found Olson guilty of violating Penal Code §30605(a) for possession of the assault weapon and Penal Code §25850(a) for possession of the loaded firearm. At sentencing, Berry reduced the assault weapon charge to a misdemeanor and sentenced Olson to three days in county jail, time-served, and ordered all of the seized firearms destroyed.
The judge declined to place Olson on probation.
Facial Challenge
Olson, acknowledging that he failed to raise a constitutional challenge at trial, nevertheless argued on appeal that §30605(a) facially violates the Second Amendment under Bruen.
Castillo noted that “[g]enerally, a criminal defendant forfeits a challenge—even on constitutional grounds—not raised in the trial court” but that cases involving pure questions of law “fall within a narrow exception.”
He pointed out that facial challenges to a statute’s constitutionality, which consider the text of the law itself and not its application to a particular set of facts, fall within such an exception. However, he said:
“Here, even accepting Olson’s Second Amendment challenge is facial…, the record and briefing are inadequate to facilitate the intensive textual and historical analysis Bruen requires.”
Bruen Analysis
The Bruen decision, authored by Justice Clarence Thomas, calls for a test “rooted in the Second Amendment’s text, as informed by history.”
Castillo explained that Bruen maintained a two-step process for Second Amendment analysis. When the plain text of the amendment covers the conduct in question, the Constitution presumptively protects that conduct. The government then bears the burden of justifying the regulation by demonstrating that it is consistent with the historical tradition of firearm regulation.
The jurist pointed out that “[t]he two California district court decisions that have analyzed the Act’s constitutionality post-Bruen” came to opposite conclusions as to the constitutionality of the act, but each relied at length on evidence presented by the parties such as testimony of experts on gun violence and history. He remarked:
“Bruen itself acknowledged that courts, in deciding the legal questions raised in Second Amendment cases, were ‘entitled to decide a case based on the historical record compiled by the parties.’”
Looking to the present case, Castillo remarked:
“Because Olson did not raise this challenge in the trial court, no such record exists here. Nor does his appellate briefing make a meaningful effort to engage in Bruen’s history- and fact-intensive analysis.”
He noted that, Olson contends in his opening rifles such as the AR-15 are not weapons used by military forces and are not “dangerous and unusual.” However, Castillo rejected that bare assertion, saying it ignores case law determining that the Second Amendment does not protect weapons, such as short-barreled shotguns, not typically possessed by law-abiding citizens for lawful purposes and “ignores California case law finding AR-15s ‘dangerous and unusual’ and thus unprotected by the Second Amendment.”
Inadequate Context
Castillo was not persuaded by Olson’s argument that assault weapons are not unusual because Americans own 24.4 million rifles, citing the district court case finding the act to be unconstitutional. He said Olson’s appellate briefs do not “meaningfully address what proportion of such modern rifles are used for self defense as opposed to other uses, lawful or otherwise…, or the meaningful distinctions, if any, in the operability of modern rifles as compared to regulatable military-grade weapons….”
The justice added:
“Where such a record has been developed and the parties’ briefs on appeal fully address Bruen’s two prongs, an appellate court can meaningfully assess the facial constitutionality of a challenged gun regulation. But such is not the case here.”
Loaded Firearm
The prosecution conceded that no evidence was presented at trial as to one element of §25850(a). The section provides that a person is guilty of carrying a loaded firearm if that firearm is carried on the person or in a vehicle “while in any public place or on any public street in an incorporated city.”
Castillo’s opinion reverses and dismisses Olson’s conviction on that count as no evidence was presented as to whether the city of San Diego is an incorporated city.
The case is People v. Olson, D082081.
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