Opinion
H050855
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. OSCAR REFUGIO, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C2103431
Danner, J.
Appellant Oscar Refugio was convicted by plea of carrying a concealed, loaded firearm in a vehicle in violation of Penal Code section 25400, subdivision (a)(1) (section 25400(a)(1)) while not registered as the owner of the firearm (§ 11106, subd. (c)(1)). Refugio contends that his conviction should be reversed because section 25400 is unconstitutional under New York State Rifle &Pistol Assn. Inc. v. Bruen (2022) 597 U.S. 1 (Bruen).
Unspecified statutory references are to the Penal Code.
For the reasons stated below, we disagree and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
These facts are drawn from the summary of the offense provided in the probation officer's report prepared for Refugio's sentencing, which derived from a San Jose Police Department report. The parties stipulated to the facts set forth in the police report.
On March 7, 2021, a patrol officer stopped Refugio after witnessing his vehicle weaving through traffic lanes. The officer observed gang-related tattoos on Refugio and detained him. Refugio gave the officer consent to search his vehicle; the officer found a loaded Glock 9mm handgun hidden behind a partially detached glove compartment.
The Santa Clara County District Attorney charged Refugio with one count of carrying a loaded, concealed firearm within a vehicle in violation of section 25400(a)(1), while not listed as the registered owner of the firearm pursuant to section 11106, subdivision (c)(1). On August 19, 2022, Refugio entered a plea of not guilty.
Unless otherwise indicated, all dates were in 2022.
On September 9, Refugio filed a demurrer challenging the trial court's jurisdiction to charge him on the grounds that California's firearm licensing scheme and, by extension, laws criminalizing firearm possession without a license (including section 25400) are unconstitutional as a consequence of the United States Supreme Court's decision in Bruen, issued on June 23.
On October 13, Refugio withdrew his previously entered plea of not guilty in order for the trial court to address the issues raised in his demurrer.
On November 15, the trial court overruled Refugio's demurrer, concluding that the conduct prohibited by section 25400 is not protected by the Second Amendment and the statute remains constitutionally valid.
On November 29, Refugio waived his right to a preliminary hearing and pleaded no contest to carrying a concealed, loaded firearm in a vehicle in violation of section 25400(a)(1) while not registered as the owner of the firearm pursuant to section 11106, subdivision (c)(1).
On January 20, 2023, the trial court suspended imposition of Refugio's sentence and placed him on formal probation for two years.
In accordance with California Rules of Court, rule 8.304(b)(1) and section 1237.5, Refugio sought and obtained from the trial court a certificate of probable cause to challenge the overruling of his demurrer. Refugio timely appealed the judgment.
II. DISCUSSION
Refugio alleges that, under Bruen, California's concealed carry firearm licensing scheme at the time of his offense, codified at section 26150 (former § 26150, added by Stats. 2010, ch. 711, § 6, pp. 4105-4106 and amended by Stats. 2023, ch. 249, § 10, pp. 4473-4474, eff Jan. 1, 2024), is unconstitutional, thereby rendering unconstitutional section 25400(a)(1)'s prohibition against an unlicensed person carrying a concealed firearm in a vehicle. He further contends that section 25400 does not satisfy the" 'history and tradition'" prong of the constitutional test articulated in Bruen. Refugio asks this court to vacate his conviction.
The Attorney General counters that Refugio lacks standing to challenge the constitutionality of the licensing scheme because he neither applied for a concealed-carry license nor demonstrated that he would have met the requirements to obtain such a license had he applied for it. On the merits, the Attorney General argues both that former section 26150 remains constitutional because the unconstitutional "good cause" component is severable and that section 25400 is valid post-Bruen.
A. Applicable Law
1. Second Amendment
The Second Amendment states, "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.) States are subject to the Second Amendment pursuant to the due process clause of the Fourteenth Amendment. (McDonald v. City of Chicago (2010) 561 U.S. 742, 791.)
In District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), the United States Supreme Court held that the rights granted by the Second Amendment include "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Id. at p. 635.) In its decision in Bruen, the United States Supreme Court extended its holding in Heller to recognize "an individual's right to carry a handgun for self-defense outside the home." (Bruen, supra, 597 U.S. at p. 10.)
Bruen decided a Second Amendment challenge to New York's firearm licensing scheme brought by two New York residents who had separately applied for unrestricted licenses to carry handguns in public. They alleged they were denied such licenses on the grounds "that they had failed to show 'proper cause,' i.e., had failed to demonstrate a unique need for self-defense." (Bruen, supra, 597 U.S. at p. 16.) After engaging in a textual and historical analysis of New York's regulation of firearms, the United States Supreme Court found unconstitutional New York's requirement that gun license applicants establish "proper cause" to obtain an unrestricted license to carry handguns in public. (Id. at p. 71.) The court concluded that the "proper-cause" requirement "prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms" (ibid.) by requiring them to "demonstrat[e] to government officers some special need" to bear arms. (Id. at p. 70.)
The United States Supreme Court articulated a "text and history" test for analyzing constitutional challenges based on rights granted by the Second Amendment. (Bruen, supra, 597 U.S. at p. 17.) "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, . . . the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" (Ibid.)
Writing for the court and separately, justices in the Bruen majority reiterated that the Second Amendment does not protect a right to" 'keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'" (Bruen, supra, 597 U.S. at p. 21 (maj. opn. of Thomas, J.); id. at pp. 80-81 (conc. opn. of Kavanaugh, J.), citing Heller, supra, 554 U.S. at p. 626.) They cautioned that an individual's Second Amendment right remains "subject to certain reasonable, well-defined restrictions," (Bruen, at p. 70) including the "imposi[tion of] licensing requirements for carrying a handgun for self-defense" (id. at p. 79 (conc. opn. of Kavanaugh, J.)) and restrictions on "the manner by which one carried arms." (Id. at p. 70; see also Heller, at p. 627, fn. 26 [setting forth a non-exhaustive list of "presumptively lawful regulatory measures"]; id. at p. 626 [observing that such measures stem from "longstanding prohibitions," including "prohibitions on carrying concealed weapons"].)
2. Carrying a Concealed Firearm in a Vehicle
Section 25400(a)(1) provides that "[a] person is guilty of carrying a concealed firearm when the 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." "Carrying a concealed firearm in violation" of section 25400 is punishable by imprisonment and a fine if the concealed firearm in question is loaded (§ 25400, subd. (c)(6)(A)) and "[t]he person is not listed . . . as the registered owner" of the firearm. (Id., subd. (c)(6)(B).)
There are several statutory exemptions to section 25400(a)(1)'s prohibition on concealed carry of a firearm in a vehicle. For example, a person who has obtained a concealed carry license under section 26150 may carry the licensed firearm in their vehicle (§ 25655), and a person over 18 years of age may transport or carry a firearm in a locked container (former § 25610, added by Stats. 2010, ch. 711, § 6, p. 4098 and amended by Stats. 2023, ch. 249, § 8, pp. 4471-4472, eff. Jan. 1, 2024).
"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 [s]ection 26150)." (§ 25655.)
At the time of Refugio's offense, this statute stated, "(a) Section 25400 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: [¶] (1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle. [¶] (2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container. [¶] (b) The provisions of this section do not prohibit or limit the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with the provisions listed in [s]ection 16580." (Former § 25610, added by Stats. 2010, ch. 711, § 6, p. 4098 and amended by Stats. 2023, ch. 249, § 8, pp. 4471-4472, eff. Jan. 1, 2024.) Effective January 1, 2024, pursuant to Senate Bill No. 2 (2022-2023 Reg. Sess.), the Legislature amended section 25610 by making the following substantive changes: Limiting the transportation of the concealed weapon to the purposes set forth in sections 25510 to 25595; clarifying that either former subdivision (a)(1) or former subdivision (a)(2) would trigger the exemption, and both conditions need not be present; adding a requirement that the firearm be unloaded; removing the "for any lawful purpose" requirement in former subdivision (a)(2); and removing former subdivision (b). The revisions to section 25610 do not affect the issues on appeal here.
3. Firearm Licensing
Sections 26150 and 26155 set forth California's requirements for obtaining a license to carry a concealed firearm. At the time of Refugio's offense, former section 26150 required an applicant for a concealed carry license to meet four requirements: They must (1) be "of good moral character"; (2) provide "[g]ood cause [] for issuance of the license"; (3) be a resident of the county in which they are seeking the license; and (4) complete a firearms training course. (Former § 26150, subd. (a), added by Stats. 2010, ch. 711, § 6, p. 4105 and amended by Stats. 2023, ch. 249, § 10, p. 4473, eff. Jan. 1, 2024 (former section 26150(a)).) After the United States Supreme Court issued its decision in Bruen, the Legislature amended former section 26150(a) and, among other changes, removed the "[g]ood cause" requirement. (Stats. 2023, ch. 249, § 10, p. 4473.)
Section 26150 covers the issuance of concealed carry licenses by a county sheriff. (§ 26150, subd. (a).) Section 26155 covers the issuance of concealed carry licenses by the chief of police. (§ 26155, subd. (a).) Refugio focuses his claim of facial invalidity on former section 26150, and we limit our discussion to that provision.
Effective January 1, 2024, pursuant to Senate Bill No. 2, the Legislature replaced the "good cause" requirement with a requirement that the applicant be and prove that they are at least 21 years of age; replaced the "good moral character" requirement with a requirement that the applicant meet the standards set forth in section 26202, which governs the designation of persons disqualified from obtaining a concealed-carry license; replaced the "may issue" language with "shall issue"; added guidance on the evidence needed to establish residency in the county; and added the requirement that the applicant be the registered owner of the firearm for which they are seeking the concealed-carry license. (Stats. 2023, ch. 249, § 10, p. 4473.)
B. Standard of Review
" 'The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.'" (People v. Alexander (2023) 91 Cal.App.5th 469, 474 (Alexander).)
"' "A defendant challenging the constitutionality of a statute carries a heavy burden: 'The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.'"' [Citations.] Typically, a litigant may challenge the constitutionality of a statute in two ways: on its face or as applied." (In re D.L. (2023) 93 Cal.App.5th 144, 156 (D.L.).)
"A facial challenge seeks to void the statute as a whole by showing that' "no set of circumstances exists under which the [statute] would be valid," i.e., that the law is unconstitutional in all'" (D.L., supra, 93 Cal.App.5th at p. 157; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe) ["' "[P]etitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions."' "]) or at least the"' "great majority of cases" '" (In re T.F.-G. (2023) 94 Cal.App.5th 893, 909 (T.F.-G.), italics omitted). When reviewing a facial challenge to a statute, we "consider[] only the text of the measure itself, not its application to the particular circumstances of an individual." (Tobe, at p. 1084.) In contrast, a defendant making an "as applied" challenge to a statute "seek[s] '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.'" (D.L., at p. 157.)
" 'Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,' severing any 'problematic portions while leaving the remainder intact'" because an unconstitutional provision in a statute" 'does not necessarily defeat or affect the validity of its remaining provisions.'" (Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010) 561 U.S. 477, 508.) If only a portion of the statute is unconstitutional, and that portion is severable, courts will uphold the statute as constitutional. (People v. Mosqueda (2023) 97 Cal.App.5th 399, 414 (Mosqueda).)
When assessing whether an unconstitutional statutory provision is severable, if the statute does not contain a severability clause, we must determine whether the provision is" 'grammatically, functionally, and volitionally separable.'" (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 271 (Matosantos).) Whether or not a provision is grammatically severable "depends on whether the invalid parts 'can be removed as a whole without affecting the wording' or coherence of what remains." (Ibid.) Whether or not a provision is functionally severable depends on whether, after removal of the invalid provision, the remainder of the statute is" '" 'complete in itself'"' and 'capable of independent application.'" (Abbott Laboratories v. Franchise Tax Bd. (2009) 175 Cal.App.4th 1346, 1358.) Whether or not a provision is volitionally severable "depends on whether the remainder [of the statute]' "would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute." '" (Matosantos, at p. 271.)
California case law appears to use the terms "severable" and "separable" interchangeably in this context.
C. Analysis
1. Standing
Refugio raises a facial challenge to the constitutionality of former section 26150 and section 25400. The Attorney General contends Refugio lacks standing because he did not demonstrate that he would have qualified for a license under the remaining valid requirements and thus cannot show that he was injured by the unconstitutional provision in former section 26150.
We are skeptical of the Attorney General's position. As a different panel of this court concluded in T.F.-G., a facial challenge does not turn on the "personal characteristics" of the challenger and, thus, the challenger "need not demonstrate that the hypothetical denial of a license-had he applied for one-would have offended the Second Amendment" in order to have standing to bring a facial challenge. (T.F.-G., supra, 94 Cal.App.5th at p. 912.) A defendant has standing when he challenges the facial constitutionality of the criminal statute under which he was convicted. (D.L., supra, 93 Cal.App.5th at p. 156.)
Nevertheless, we need not definitively decide whether Refugio has standing to challenge former section 26150 and section 25400 because-as we explain below- neither statute is unconstitutional under Bruen. We therefore assume without deciding that Refugio has standing to challenge the constitutionality of former section 26150 and section 25400, and we address the merits of his challenge to them. (See, e.g., People v. Miller (2023) 94 Cal.App.5th 935, 942 (Miller).)
2. Former Section 26150
Refugio contends that former section 26150 is unconstitutional on its face because (1) the Bruen decision rendered the statute's "good cause" requirement unconstitutional, and (2) former section 26150 granted "the licensing authorities discretion to deny a license even where the applicant satisfies the minimum statutory requirements."
The Attorney General concedes the "good cause" requirement of former section 26150 is unconstitutional following Bruen. As the statute contains no severability clause, we must consider whether the invalid provision is" 'grammatically, functionally, and volitionally separable'" from the remainder of the statute. (Matosantos, supra, 53 Cal.4th at p. 271.)
As it read at the time of Refugio's arrest, the "good cause" requirement in former section 26150(a) was both grammatically separate from the other license requirements set forth in subdivision (a) and set forth in its own subdivision, subdivision (a)(2).
Removing the "good cause" requirement does not impair the wording or coherence of the remainder of the requirements in subdivision (a), and therefore this element is grammatically separable for purpose of the severance analysis.
With respect to functional severability, none of the other requirements are reliant upon or cross-reference the "good cause" requirement. Moreover, when the Legislature replaced former section 12050 with former section 26150, it "included the same general requirements for obtaining a license to carry a concealed weapon . . . without substantive change" but separated the requirements into "distinct paragraphs." (D.L., supra, 93 Cal.App.5th at p. 164; see also Stats. 2010, ch. 711, § 6, p. 4105.) Not only are the other licensing requirements independent and complete irrespective of the "good cause" requirement, "the Legislature viewed [them] as separate, and as functioning independently of one another." (D.L., at p. 164.) Thus, the "good cause" requirement is functionally separable as well.
The crux of the third severability prong-volitional separability-"is whether a legislative body, knowing that only part of its enactment would be valid, would have preferred that part to nothing, or would instead have declined to enact the valid without the invalid." (Matosantos, supra, 53 Cal.4th at p. 273.) California courts have recognized the Legislature's interest in regulating firearms, particularly in controlling concealed firearms (Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236, 1246, limiting firearms licenses to "law-abiding" citizens in line with Heller and Bruen (see, e.g., Alexander, supra, 91 Cal.App.5th at p. 479), and" 'ensuring Californians who carry firearms . . . know how to safely handle a gun'" (Mosqueda, supra, 97 Cal.App.5th at p. 414). We conclude that the Legislature would have preferred to excise the "good cause" requirement rather than eliminate the licensing scheme as a whole.
For these reasons, we decide the unconstitutional "good cause" requirement is severable from former section 26150. The remainder of former section 26150- including the "may issue" language Refugio challenges-is constitutionally sound post-Bruen. The only provision in New York's licensing framework the United States Supreme Court invalidated was the "proper cause" requirement. (Bruen, supra, 597 U.S. at p. 71.) Specifically, the court explained that" 'nothing' in its analysis should be interpreted to suggest the unconstitutionality of licensing regimes that require applicants to" meet objective criteria, such as" 'undergo[ing] a background check or pass[ing] a firearm safety course' to obtain a license." (D.L., supra, 93 Cal.App.5th at p. 165, citing Bruen, at p. 38, fn. 9.)
At least two of former section 26150(a)'s other three licensing requirements at the time of Refugio's offense constitute objective requirements: Residence within the county where the applicant seeks the license, and completion of a firearm training course. The court in Mosqueda concluded that those requirements, together with the" 'good moral character'" requirement, "advance California's long-held goals of 'ensuring Californians who carry firearms are responsible and law-abiding, live in or have substantial contact with the licensing jurisdiction (since local law enforcement is tasked with licensee compliance) and know how to safely handle a gun.'" (Mosqueda, supra, 97 Cal.App.5th at p. 414.)
Refugio does not challenge, and we do not address, the constitutionality of former section 26150's "good moral character" requirement for licensure. Although the Legislature has replaced the "good moral character" requirement in section 26150 with a requirement that the applicant not be a "disqualified person" under with section 26202 (Stats. 2023, ch. 249, § 10, p. 4473), the New York statute at issue in the Bruen case likewise included a "good moral character" requirement, which the Supreme Court acknowledged but did not deem unconstitutional. (Bruen, supra, 597 U.S. at p. 11.)
Moreover, despite Refugio's argument to the contrary, the United States Supreme Court in Bruen did not conclude that the" 'may issue'" language in concealed carry licensing schemes such as California's was unconstitutional. (Mosqueda, supra, 97 Cal.App.5th at p. 412.) Its holding was limited to the constitutionality of New York's" 'proper cause'" requirement and corollary requirements such as California's former" 'good cause'" requirement. (D.L., supra, 93 Cal.App.5th at p. 166; Mosqueda, at p. 411.)
We conclude California's" 'good cause'" requirement is severable and, once severed, its licensing scheme under former section 26150 remains constitutionally valid. (T.F.-G., supra, 94 Cal.App.5th at p. 916, citing D.L., supra, 93 Cal.App.5th at pp. 163165.)
Nevertheless, Refugio argues that, even if the "good cause" requirement is severable, such separation cannot be applied retroactively to overcome the unconstitutionality of his conviction for a pre-Bruen offense. In D.L., the defendant made a similar argument, alleging "that severability does not cure the harm suffered from his pre-Bruen conviction." (D.L., supra, 93 Cal.App.5th at p. 165.) However, the court concluded that such an argument "could only make sense in the context of an 'as applied' challenge." (Ibid.) Moreover, as the court in D.L. reasoned, even if the defendant could and did assert an as applied challenge, his conviction "had nothing to do with the 'good cause' licensing requirement." (Ibid.) We agree.
The case Refugio relies on for this claim, Shuttlesworth v. Birmingham (1969) 394 U.S. 147, is distinguishable on the facts. In Shuttlesworth, the United States Supreme Court held that the ordinance in question-which granted officials broad-based, subjective control without any objective guidelines-was unconstitutional on its face to such an extent that the unconstitutional elements were not severable. (Id. at pp. 151 [noting the statute gave officials "uncontrolled will"]; id. at p. 153 [noting further that the statute gave officials "extensive authority" to grant or withhold a license based on "broad" and subjective criteria]; see also People v. Fogelson (1978) 21 Cal.3d 158, 166 [noting regulatory schemes "invalidated" as unconstitutional "for failure to provide the licensing officials with the requisite definite, objective guidelines for issuing the licenses"].) In contrast, as discussed ante, former section 26150 was not wholly unconstitutional, the remaining requirements are objective guidelines, and the "good cause" requirement is the only component that needs to be severed post-Bruen, leaving several valid requirements intact.
As California retained the ability to regulate the carrying of firearms through former section 26150, Refugio was not entitled to disregard the statute's remaining constitutionally-sound requirements.
Although "[t]he constitutionality of California's concealed carry prohibition is not dependent upon the constitutionality of its licensing statutes" (Miller, supra, 94 Cal.App.5th at p. 945), given that, with the" 'good cause'" requirement severed, former section 26150 "does not facially violate the Second Amendment," Refugio's claim that section 25400 is unconstitutional because of former section 26150's unconstitutionality necessarily fails. (Mosqueda, supra, 97 Cal.App.5th at p. 414.)
"If a state may enforce a licensing regime, then a state may impose penalties for noncompliance." (T.F.-G., supra, 94 Cal.App.5th at p. 915; see also Mosqueda, supra, 97 Cal.App.5th at p. 414 [noting that a defendant's "Second Amendment rights are not violated when the state enforces [its licensing requirements] criminally"].) Section 25400 is one such enforcement mechanism. (See T.F.-G., at p. 915.)
The penalties section 25400 imposes on those who do not have a concealed carry license would apply not only to those "who are wrongfully denied licenses based on the unconstitutional good cause requirement, but [also] on individuals who cannot or do not obtain licenses due to constitutionally valid restrictions" set forth in section 26150, including the residency and firearms training requirements. (T.F.-G., supra, 94 Cal.App.5th at p. 916.) A facial challenge to section 25400 "succeeds only where [the] statute is unconstitutional in all or at least the generality or great majority of cases," (id. at pp. 915-916) so "it is not enough to show that [the] statute may have an unconstitutional application to a hypothetical person lawfully carrying" a loaded firearm in their vehicle "after failing to secure a license [to do so] due to [the] 'good cause' requirement." (Id. at p. 915; see also Alexander, supra, 91 Cal.App.5th at p. 474 [noting that, when "analyzing a facial challenge to the constitutionality of a statute," the reviewing court does not consider" 'its application to the particular circumstances of an individual' "].) Section 25400(a)(1) could still have been constitutionally applied to applicants who failed to secure a license due to the residency and/or firearms training requirements and Refugio does not claim otherwise.
In addition, neither section 25400(a)(1) nor its predecessor, former section 12025, subdivision (a), are blanket prohibitions, such as the one disfavored in Bruen. (Bruen, supra, 597 U.S. at p. 53 ["[H]istory reveals a consensus that States could not ban public carry altogether."].) Section 25400(a)(1) exists within a framework that contains various express exemptions. Obtaining a license to carry a concealed handgun (§ 25655) is but one of these exemptions. (People v. Ellison (2011) 196 Cal.App.4th 1342, 1351 (Ellison).) The breadth and variety of available exemptions indicate that the prohibitions in section 25400(a)(1) "are not overbroad." (D.L., supra, 93 Cal.App.5th at p. 154, fn. 4.) Rather, "[t]he statute is narrowly tailored to protect the public by prohibiting only the unregistered carrying of concealable firearms in a vehicle. Because of its narrow focus, it is not overbroad." (Ellison, at p. 1351.)
See, e.g., §§ 25520 [safety and hunter safety courses and recognized sporting events], 25525 [transport between owner's residence, business, and private property], 25535 [gun show, swap meet, or similar events], 25540 [target ranges], 25550 [certain lawful camping activities], 25610 [former: transportation of a firearm in a locked container, and current: transportation of an unloaded firearm in a locked container], 25640 [licensed hunters or fishermen], 25655 [person with a concealed carry license].
Moreover, neither statutory history nor case law supports Refugio's contention that the" 'history and tradition'" test articulated in Bruen renders section 25400 unconstitutional. Bruen and Heller both discuss our country's history of regulating the carrying of concealed weapons and expressly state that their holdings do not limit a state's ability to continue to regulate firearms, including enforcing prohibitions against a certain manner of carry.
The Bruen court noted both that states "began enacting laws that proscribed the concealed carry of pistols and other small weapons" during the "early to mid-19th century" (Bruen, supra, 597 U.S. at p. 52) and that "historical evidence from antebellum America" showed that "the manner of public carry" continued to be "subject to reasonable regulation." (Id. at p. 59.) Such reasonable restrictions, including the manner of carry, continued to be promulgated "[t]hroughout modern Anglo-American history." (Id. at p. 38.)
In engaging in its historical analysis of our country's regulation of firearms, the United States Supreme Court observed that," '[f]rom Blackstone through the 19th- century cases, commentators and courts routinely explained that the right [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'" (Bruen, supra, 597 U.S. at p. 21, quoting Heller, supra, 554 U.S. at p. 626.) Indeed, the Heller court stated that "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."(Heller, at p. 626 (maj. opn. of Scalia, J.); id. at p. 688 (dis. opn. of Breyer, J.) [noting that "the majority implicitly, and appropriately, . . . broadly approv[es] a set of laws" restricting firearm use, including "prohibitions on concealed weapons"].) "Rather than cast any doubt upon the continued constitutional validity of concealed weapons bans, the Heller opinion specifically expressed constitutional approval of the accepted statutory proscriptions against carrying concealed weapons." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 314; see also Ellison, supra, 196 Cal.App.4th at p. 1348 ["The United States Supreme Court expressly included longstanding prohibitions against carrying concealed weapons in its non-exhaustive list of presumptively lawful restrictions on the right to bear arms."].)
See, e.g., State v. Jumel (1858) 13 La.Ann. 399, 400 [finding the statute criminalizing carrying a concealed weapon not to infringe the defendant's Second Amendment rights but, rather, was an appropriate "measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society"]; State v. Chandler (1850) 5 La.Ann. 489, 489-490 [stating that a concealed carry regulation "became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons"]; id. at p. 490 [observing that the statute prohibiting concealed carry "interfered with no man's right to carry arms (to use its words) 'in full open view,' which places men upon an equality" rather than with "any tendency to secret advantages and unmanly assassinations"]; State v. Reid (1840) 1 Ala. 612, 615 ["The evil which was intended to be remedied by the" Second Amendment "was a denial of the right of Protestants to have arms for their defen[s]e, and not an inhibition to wear them secretly."]; Robertson v. Baldwin (1897) 165 U.S. 275, 281 [stating that the "guaranties and immunities" set forth in the Bill of Rights were "subject to certain well-recognized exceptions"]; id. at pp. 281-282 [noting as an example of an exception that "the right of people to keep and bear arms [] is not infringed by laws prohibiting the carrying of concealed weapons"].) Although the Bruen court clarifies that such "concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry," it did not declare regulations prohibiting concealed carry unconstitutional on their face. (Bruen, supra, 597 U.S. at p. 53.) Furthermore, as discussed ante, the prohibitions on concealed carry of firearms challenged here are narrowly tailored and include numerous exceptions, not the blanket prohibitions disfavored in Bruen.
We join the other courts in California to have considered the issue and decide section 25400's prohibition on the concealed carry of firearms in vehicles is consistent with our country's "historical tradition of firearm regulation," and, as such, is constitutional under the test articulated in Bruen. (Bruen, supra, 597 U.S. at p. 17.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Bromberg, J.