Opinion
E071453
12-06-2019
THE PEOPLE, Plaintiff and Respondent, v. TODD ROSENSCHEIN, Defendant and Appellant.
John F. Schuck under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1600966) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed. John F. Schuck under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Todd Rosenschein, of one count of importing a large-capacity magazine (LCM) that holds more than 10 rounds into California. (Pen. Code, § 32310, subdivision (a).) On appeal, defendant asserts his conviction must be reversed for five reasons: (1) His prosecution was barred by the statute of limitations; (2) his trial counsel was ineffective for failing to raise a statute of limitations defense; (3) there was no substantial evidence that he imported the LCM; (4) he voluntarily "surrendered" the LCM to law enforcement; and (5) section 32310 violates his Second Amendment rights. We reject defendant's contentions and affirm the judgment.
Unless otherwise noted, all statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, defendant called the police because his wife had "gone crazy" and pointed a gun at him. Defendant waited outside for the police to arrive and, upon their arrival, informed them that he had disarmed his wife, unloaded the gun, and left it in the garage. Defendant's wife exited the house crying and "almost hysterical." Based on her statements and appearance, the responding officers determined she should be placed on a 72-hour mental evaluation hold under Welfare & Institutions Code section 5150.
While speaking with the officers, defendant handed them a magazine with a 12-round capacity from his front pocket. The officers informed defendant that the magazine had been illegal since 2014. (§ 32310, subd. (a).) Defendant stated he had legally obtained the magazine while stationed in the Navy in Florida and had brought it with him when he moved to California "years ago." Defendant further stated that he knew he "couldn't have" the magazine and explained that he had forgotten to get rid of it.
In October 2016, the People filed a felony complaint against defendant charging him with one count of violation of section 32310, subdivision (a). The complaint alleged "that on or about June 3, 2016, . . . defendant[] did willfully and unlawfully manufacture, cause to be manufactured, import into the State of California . . . a [LCM]" in violation of section 32310, subdivision (a).
In May 2017, the People filed an information, charging defendant with a felony violation of section 32310, subdivision (a), and again alleging that defendant imported the LCM into California on June 3, 2016.
At the People's request, the section 32310, subdivision (a) charge was subsequently reduced from a felony to a misdemeanor. A jury found defendant guilty as charged. The trial court placed defendant on three years of probation.
Defendant timely appealed.
III.
DISCUSSION
A. Defendant Forfeited His Statute of Limitations Defense
Defendant argues for the first time on appeal that his section 32310, subdivision (a) charge was barred by the three-year statute of limitations. The People assert defendant forfeited the argument because he did not raise it in the trial court. We agree.
The applicable statute of limitations is three years. (§ 801; see People v. Crabtree (2009) 169 Cal.App.4th 1293, 1309-1310 [explaining that three-year statute of limitations applies to misdemeanor charge if originally charged as a felony].) Defendant contends his 32310, subdivision (a) charge, filed in 2016, was barred by the three-year statute of limitations because he committed the underlying offense of importing the LCM in 2009, when he moved from Florida to California.
A defendant may "forfeit factual issues relating to the statute of limitations when, as here, the information alleges facts indicating that the prosecution was timely." (People v. Simmons (2012) 210 Cal.App.4th 778, 793.) If the charging document "allege[s] that the action is timely, any objection to the sufficiency of the evidence to prove timeliness must be raised in the trial court in the first instance—typically, by requesting a jury instruction on the subject." (People v. Ortega (2013) 218 Cal.App.4th 1418, 1427-1428.) Put another way, if a charging document's allegations indicate the charge is timely, but the defendant contends the charge is untimely, the defendant must make that argument in the trial court or it is forfeited on appeal. (Id. at pp. 1427-1428; see also People v. Padfield (1982) 136 Cal.App.3d 218, 226 [holding defendant forfeited statute of limitations defense when charging document alleged defendant committed crime within statute of limitations period and defendant pled no contest]; People v. Simmons, supra, 210 Cal.App.4th at p. 793 ["We also conclude that a defendant may forfeit factual issues relating to the statute of limitations when, as here, the information alleges facts indicating that the prosecution was timely."].)
Here, both the October 2016 complaint and May 2017 information alleged that defendant violated section 32310, subdivision (a) in June 2016—well within the three-year statute of limitations. The People therefore pled facts to avoid the three-year statute of limitations. Because defendant did not challenge that allegation in the trial court, he has forfeited his right to do so on appeal. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1439 [holding that if "the People plead facts to avoid the bar of the statute of limitations, and the defendant fails to put the People to their proof in the trial court, then the defendant forfeits the statute of limitations issue and cannot raise it for the first time on appeal"]; accord, People v. Thomas (2007) 146 Cal.App.4th 1278, 1288, disapproved on other grounds by People v. Shockley (2013) 58 Cal.4th 400, 406.) Accordingly, we need not reverse defendant's conviction or remand to the trial court for a determination as to whether the charge was timely. (See People v. Ortega, supra, 218 Cal.App.4th at pp. 1427-1428.)
B. The Record Does Not Affirmatively Show Defense Counsel Was Ineffective
Defendant argues, and the People do not dispute, that even if he forfeited his statute of limitations argument, he can raise it "under the rubric of ineffective assistance of counsel." (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [appellate court may address forfeited argument to avoid a subsequent claim of ineffective assistance of counsel on habeas corpus].) The People nonetheless argue defendant cannot show that his defense counsel was ineffective for failing to raise a statute of limitations argument in the trial court. We agree.
To find that defendant suffered prejudicial ineffective assistance of counsel, defendant must show (1) his counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent his counsel's error, it is reasonably probable that the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
A criminal conviction will be reversed for ineffective assistance of counsel only if the record "affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Zapien (1993) 4 Cal.4th 929, 980.) "Generally, claims for ineffective assistance of counsel are more appropriately litigated on habeas corpus because the reasons for defense counsel's actions or omissions can be explored." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1075.)
"[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistant of counsel "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
The record here sheds no light on why defendant's counsel did not pursue a statute of limitations defense. Indeed, there is no record evidence showing whether defense counsel knew of that potential defense, or whether counsel decided to forego it for tactical reasons.
Defendant's counsel, however, reasonably may have opted not to assert a statute of limitations defense because it was inconsistent with defendant's theories that (1) someone else imported the LCM and (2) defendant did not intentionally import it. In closing argument, defendant's counsel argued: "[W]e've got an inference that [defendant] imported [the] magazine into California because he had it on his person. . . . Is there any other reasonable conclusion that could possibly be drawn from the fact that he had it on his person? Well, sure there is. Somebody else imported it. . . . [I]s it reasonable to say, yeah, somebody else brought it in? I submit that it is." Defense counsel further argued there was "no way" the prosecution had proven defendant had "wrongfully intended to bring [the magazine] into California."
But to assert a statute of limitations defense, counsel would have been forced to concede that defendant imported the LCM (outside of the statute of limitations). In other words, defendant have been required to admit that he committed the crime of importing the LCM. Defense counsel thus reasonably could have concluded making a statute of limitations argument would have been inconsistent with—and more harmful to—defendant's overall defense that he did not violate section 32310, subdivision (a) in the first place because he did not intentionally import the LCM into California. Defense counsel may have not wanted to pursue a statute of limitations defense as it may have diminished defendant's credibility, drawn the jury's attention to evidence that defendant had actually imported the LCM, and conflicted with the theory that defendant had not done anything wrong. It also likely would have required defendant to testify, which he chose not to do at trial. Defense counsel thus reasonably could have made the tactical decision to avoid an inconsistent alternative defense that defendant committed the offense outside the statute of limitations. And given that the People only had to prove the charge was timely by a preponderance of the evidence, not beyond a reasonable doubt (People v. Linder (2006) 139 Cal.App.4th 75, 85), defense counsel could have tactically decided to focus instead on a sufficiency of the evidence argument.
In sum, the record on appeal does not affirmatively disclose defense counsel had no rational tactical purpose to forego a statute of limitations argument. Accordingly, we must reject defendant's ineffective assistance of counsel claim. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Jones (2009) 178 Cal.App.4th 853, 860 [rejecting ineffective assistance claim based on failure to object to evidence when record "[did] not affirmatively disclose why counsel failed to object"].)
C. Substantial Evidence Supports Defendant's Conviction
Defendant contends there is no substantial evidence to support his conviction. Specifically, defendant argues that, although there was evidence that he owned the LCM in Florida, there is no evidence that he imported it into California. We disagree because he admitted that he brought the LCM with him when he moved to California from Florida.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 32310, subdivision (a) makes it unlawful for anyone to import into California a LCM, which is defined as a magazine capable of holding more than 10 rounds. To find defendant guilty of violating section 32310, subdivision (a), the People had to prove beyond a reasonable doubt that defendant knowingly imported a LCM into the state. The jury found defendant guilty of importing a LCM from Florida into California in violation of 32310, subdivision (a).
We conclude substantial evidence supports the jury's verdict. At trial, an officer testified that defendant handed him a 12-round magazine. The officer also testified that defendant informed him that he obtained the magazine in Florida, brought it with him when he moved to California, he knew that he "couldn't have" it in California, and that he had forgotten to "get rid of" it. Defendant did not proffer any evidence to dispute the officer's testimony.
The jury reasonably could have inferred from the officer's testimony that defendant knowingly brought the LCM with him when he moved from Florida to California. This evidence was sufficient for the jury to find defendant guilty of importing a LCM into California in violation of section 32310, subdivision (a). (See People v. Bolin (1998) 18 Cal.4th 297, 331 [reversal of conviction justified only if record establishes that "'upon no hypothesis whatever is there sufficient substantial evidence to support'" the conviction].) For that reason, we reject defendant's assertion that insufficient evidence supports his conviction.
D. Defendant's "Surrendering" the Magazine Is Not a Valid Defense
Defendant argues his conviction should be reversed because he "voluntarily surrendered" the LCM to law enforcement for destruction under section 32310, subdivision (d)(3), when he handed it to a responding officer. Defendant asserts that his purportedly surrendering the LCM to one of the responding officers provides a complete defense to his conviction, and the trial court violated his right to due process rights by failing to sua sponte instruct the jury on that defense.
Section 32310, subdivision (c) states that, commencing July 1, 2017, anyone who "possesses any [LCM], regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per [LCM], or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per [LCM], by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." Section 32310, subdivision (d), in turn, mandates that anyone who "may not lawfully possess a [LCM] commencing July 1, 2017 shall, prior to July 1, 2017" remove it from California, sell it, or surrender it "to a law enforcement agency for destruction." (§ 32310, subdivision (a), subd. (d)(1)-(3), italics added.)
Certain individuals and entities are exempt from section 32310's coverage. (See, e.g., §§ 32400 [law enforcement], 32405 [peace officers], 32450 [special weapons permittees).)
As a preliminary matter, defendant argues section 32310, subdivision (d)(3), which was enacted after his current offense, should apply retroactively. (See Initiative Measure (Prop. 63, § 6.1, approved Nov. 8, 2016, eff. Nov. 9, 2016).) Because we conclude section 32310, subdivision (d) does not provide a defense to defendant's conviction, we assume for the sake of argument it applies retroactively here. We also assume without deciding that defendant's handing the police officers the LCM qualifies as surrendering it "to a law enforcement agency for destruction" under section 32310, subdivision (d)(3).
When interpreting a statute, "we first look to the words of the statute, giving them their usual and ordinary meaning." (Williams v. Superior Court (2001) 92 Cal.App.4th 615, 623.) Based on its plain language, we do not read section 32310, subdivision (d), as providing a defense to a charge under section 32310, subdivision (a). Section 32310, subdivision (c), states that anyone who may not lawfully possess a LCM as of July 1, 2017, is guilty of an infraction, misdemeanor, and/or a felony. Relatedly, section 32310, subdivision (d) states that anyone who may not lawfully possess a LCM as of July 1, 2017, must do one of three things by July 1, 2017—remove the LCM from California, sell it, or surrender it to a law enforcement agency for destruction. (§ 32310, subd. (1)-(3).) Taken together, the most natural reading of these two provisions is that anyone who unlawfully possesses a LCM on July 1, 2017, will face charges for possessing it if it is not removed from California, sold, or surrendered to a law enforcement agency for destruction by July 1, 2017. (See Sen. Bill No. 1446 (2015-2016 Reg. Sess.) ["The bill would require a person in lawful possession of a [LCM] prior to July 1, 2017, to dispose of the magazine, as provided."].) But nothing in section 32310, subdivision (d) (or elsewhere) indicates a defendant's compliance with its terms provides a defense for a charge under section 32310, subdivision (a). Defendant does not provide, nor do we find, any authority that suggests otherwise.
Second, by its plain language, section 32310, subdivision (d) concerns only the unlawful possession of LCMs. The statute mandates that anyone who may not lawfully possess a LCM must dispose of it by July 1, 2017. (See Sen. Rules. Com. Off. Of Sen. Floor Analyses, 3rd reading analysis of Sen. Bill No. 1446, supra, as amended Mar. 28, 2016, p. 3 [explaining that bill introducing section 32310 "requires that a person who, prior to July 1, 2017, legally possesses a [LCM] dispose of that magazine"].) But defendant was charged with unlawfully importing a LCM, and section 32310, subdivision (d) says nothing about importation.
In short, compliance with section 32310, subdivision (d) does not provide a defense for importing a LCM in violation of section 32310, subdivision (a). We reject defendant's contention that his section 32310, subdivision (a) conviction must be reversed because he gave the LCM to a responding officer. We also reject defendant's arguments that the trial court erred by not giving an instruction on his purported defense under section 32310, subdivision (d), and that his trial counsel was ineffective for not requesting such an instruction, because defendant was not entitled to an instruction on a nonexistent defense. (See People v. Anderson (2011) 51 Cal.4th 989, 999 ["As defendant's theory of accident concerning the use of force added a nonexistent element . . . to the offense, an instruction on that theory would have been improper."]; People v. Cisneros (1973) 34 Cal.App.3d 399, 437 ["[T]rial counsel cannot be faulted for failure to press further what in all probability was a nonexistent defense."], disapproved on another ground by People v. Ray (1975) 14 Cal.3d 20, 30 fn. 8.)
E. Section 32310 Does Not Violate the Second Amendment
Defendant argues his conviction must be reversed because section 32310 violates his Second Amendment rights. The People counter that defendant forfeited the argument by failing to raise it in the trial court and, in any event, section 32310 is constitutional. We exercise our discretion to address the issue and conclude that section 32310 does not violate the Second Amendment.
Although a criminal defendant generally forfeits on appeal any argument that was not raised in the trial court, an appellate court may consider a forfeited argument. (In re Sheena K. (2007) 40 Cal.4th 875, 880.) Because defendant did not argue in the trial court that section 32310 is unconstitutional, he has forfeited the argument on appeal. (Ibid.) We nonetheless exercise our discretion to consider the issue because it is "one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts." (See People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) We also consider the issue "to avert [defendant's] claim of inadequate assistance of counsel. [Citations.]" (Ibid.) Finally, defendant did not forfeit an argument that was not cognizable until Duncan v. Becerra (S.D. Cal. 2019) 366 F.Supp.3d 1131 (Duncan) issued during the pendency of this appeal. (People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479 ["A criminal defendant cannot be deemed to have waived or forfeited a legal argument which was not recognized at the time of his trial."], fn. omitted.)
The federal courts have developed a two-step approach for assessing Second Amendment challenges. (Gould v. Morgan (1st Cir. 2018) 907 F.3d 659, 668 [collecting cases].) "Under this approach, the court first asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment's guarantee." (Id. at pp. 668-669.) The law is valid if it does not impose such a burden. (Id. at p. 669.) If it does burden Second Amendment rights, we determine which level of scrutiny to apply (i.e., strict, intermediate, or rational basis), and then assess whether the law survives under the applicable level of scrutiny. (Ibid.)
We assume without deciding that LCMs are entitled to Second Amendment protection, and turn to the appropriate level of scrutiny. (See Worman v. Healey (1st Cir. 2019) 922 F.3d 26, 36 (Worman); Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (3d Cir. 2018) 910 F.3d 106, 117.) The People argue intermediate scrutiny applies, whereas defendant suggests section 32310 should be subject to strict scrutiny, but contends section 32310 nonetheless cannot pass intermediate scrutiny. Because section 32310 "does not completely prohibit or unduly burden the right of law-abiding persons to bear arms," we apply intermediate scrutiny. (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347.) This is consistent with the federal appellate courts, which have uniformly applied intermediate scrutiny when assessing challenges to laws restricting LCMs. (See Worman, supra, at p. 38 [collecting cases]; Fyock v. Sunnyvale (9th Cir. 2015) 779 F.3d 991, 999.)
"Under the intermediate scrutiny test, the statute must serve an important governmental interest and there should be a reasonable fit between the regulation and the governmental objective." (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1374.) To survive intermediate scrutiny, the challenged regulation need only be "'substantially related'" to an "significant, substantial, or important" governmental interest. (United States v. Chovan (9th Cir. 2013) 735 F.3d 1127, 1135-1136, 1139.) When applying intermediate scrutiny, we must "'accord substantial deference to the predictive judgments of [the Legislature].'" (Turner Broadcasting System, Inc. v. Federal Communications Commission (1997) 520 U.S. 180, 195.) In determining whether section 32310 passes intermediate scrutiny, we may consider the statute's legislative history, "as well as studies . . . cited in pertinent case law." (Jackson v. City and County of San Francisco (9th Cir. 2014) 746 F.3d 953, 969.) We look to ensure that "in formulating its judgments, [the Legislature] has drawn reasonable inferences based on substantial evidence." (Turner Broadcasting System, Inc. v. Federal Communications Commission, supra, at p. 195.)
The Legislature enacted section 32310 to protect Californians, particularly law enforcement, from gun violence, and "to reduce the incident and harm of mass shootings." (Wiese v. Becerra (E.D.Cal. 2017) 263 F.Supp.3d 986, 992; Duncan, supra, 366 F.Supp.3d 1131, 1160-1161 [finding section 32310 supports important state interests].) We conclude—and defendant does not dispute—that section 32310 serves an important governmental interest of protecting Californians' safety and reducing gun violence. (See Worman, supra, 992 F.3d at p. 39 [noting that "'few interests are more central to a state government than protecting the safety and well-being of its citizens'"].)
Defendant argues there is no reasonable connection between California's interests and section 32310 because "banning magazines over 10 rounds will not further any state interest." However, "multiple courts have found a reasonable fit between" laws intending to promote public safety and reduce gun violence by restricting LCMs. (Wiese v. Becerra, supra, 306 F.Supp.3d at p. 992 [collecting cases].) A review of those decisions, as well as the studies they discuss, leads us to conclude that section 32310 is substantially related to the goal of protecting Californians' safety and reducing gun violence.
In Fyock, the Ninth Circuit upheld the City of Sunnyvale's ordinance, which, like section 32310, prohibited magazines capable of holding more than 10 rounds. (Fyock v. Sunnyvale, supra, 779 F.3d at p. 994.) Sunnyvale presented evidence that LCMs cause more shots to be fired and more gunshot wounds per victim, increase the lethality of gunshot wounds, and are disproportionately used in mass shootings and in crimes against law enforcement. (Id. at p. 1000.) The city also submitted studies showing that a reduction of LCMs in circulation could decrease their use in gun crimes. (Ibid.) The Ninth Circuit thus concluded the ordinance passed intermediate scrutiny because there was a reasonable fit between the ordinance and Sunnyvale's interests of protecting its citizens from gun violence. (Id. at pp. 1000-1001.)
In San Francisco Veteran Police Officers Association v. City and County of San Francisco (N.D. Cal. 2014) 18 F.Supp.3d 997, 999-1002, San Francisco provided evidence that "there is a very high correlation between mass shootings and the use of magazines with the capacity to accept more than ten rounds." (Id. at p. 1003.) The district court upheld San Francisco's ordinance banning the possession of LCMs because it was substantially related to its interests in promoting public safety and preventing gun violence. (Id. at p. 1004.)
Similarly, in Heller v. District of Columbia (D.C. Cir. 2011) 670 F.3d 1244, the District of Columbia provided evidence that magazines capable of holding more than 10 rounds "'greatly increase the firepower of mass shooters'" (id. at p. 1263) because they permit "'a shooter to fire more than ten rounds without reloading.'" (Ibid.) The District of Columbia Chief of Police testified that the "'2 or 3 second pause' during which a criminal reloads his firearm 'can be of critical benefit to law enforcement.'" (Id. at p. 1264.) The District of Columbia Circuit thus upheld the District's ban on LCMs because there was a "substantial relationship" between the ban and the District's "objectives of protecting police officers and controlling crime." (Ibid.)
In Worman, Massachusetts proffered "ample evidence of the unique dangers posed by" LCMs. (Worman, supra, 922 F.3d at p. 39.) Massachusetts established that LCMs had been used in several mass shootings and increase a weapon's lethality by "allowing the shooter to fire more bullets without stopping to reload" (ibid.) and that restricting their availability "will help curtail outbreaks of mass violence." (Id. at p. 40.) The First Circuit therefore upheld Massachusetts's ban on LCMs because it was substantially related to the state's interests in protecting its citizens.
Several other jurisdictions have come to the same conclusion in enacting similar legislation restriction LCMs. (E.g., Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, supra, 910 F.3d 106, 119 ["Not only will the LCM ban reduce the number of shots fired and the resulting harm, it will present opportunities for victims to flee and bystanders to intervene."]; New York State Rifle and Pistol Association, Inc. v. Cuomo (2d Cir. 2015) 804 F.3d 242, 263 ["The record evidence suggests that [LCMs] may 'present even greater dangers to crime and violence than assault weapons alone . . . .'"]; Kolbe v. Hogan (4th Cir. 2017) 849 F.3d 114, 140 (en banc) ["Maryland relied on evidence that, by reducing the availability of such weapons and magazines overall, the FSA will curtail their availability to criminals and lessen their use in mass shootings, other crimes, and firearms accidents."].) The federal appellate courts have unanimously upheld these laws as consistent with the Second Amendment. (See Worman, supra, 922 F.3d at p. 39.)
When enacting section 32310 in 2016, the Legislature observed there had been 50 mass shootings involving LCMs since 1980, including three in 2015, and that such magazines "allow a shooter to rapidly fire without reloading." (Sen. Com. On Public Safety, Analysis of Sen. Bill No. 1446, supra, p. 5.) The Legislature reasonably determined that restricting LCMs within California would reduce the incidence of and harm caused by mass shootings given the unique risks posed by LCMs. This determination, which we afford substantial deference (Turner Broadcasting System, Inc. v. Federal Communications Commission, supra, 520 U.S. at p. 211), coupled with the unanimous federal appellate decisions upholding similar laws, show there is a rational relationship between section 32310's restrictions on LCMs and the statute's important objectives of protecting Californians and reducing gun violence. We therefore conclude section 32310 does not violate the Second Amendment. (Kolbe v. Hogan, supra, 849 F.3d at pp. 140-141 ["[T]he State has shown all that is required: a reasonable, if not perfect, fit between [the law banning LCMs] and [the State's] interest in protecting public safety."].)
Relying exclusively on Duncan, supra, 366 F.Supp.3d 1131, defendant argues otherwise. We decline to follow Duncan for three reasons. First, Duncan is a trial court decision currently on appeal. Second, Duncan is an outlier that goes against the unanimous weight of federal appellate authority holding that restrictions on LCMs are constitutional. Third, and most importantly, Duncan improperly applied strict scrutiny, which is more stringent than intermediate scrutiny. (See People v. Cole (2007) 152 Cal.App.4th 230, 238 [strict scrutiny is the highest level of constitutional scrutiny].) To date, Duncan is the only court to apply strict scrutiny to laws regulating LCMs. (See Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, supra, 910 F.3d at p. 118, fn. 21 ["No court has applied strict scrutiny to LCM bans, reasoning that the bans do not impose a severe or substantial burden on the core Second Amendment right."].)"
Its use of an erroneous level of constitutional scrutiny diminishes its already limited persuasive value. (See Michigan State AFL-CIO v. Miller (6th Cir. 1997) 103 F.3d 1240, 1249 [reversing in part because district court "applied the incorrect level of constitutional scrutiny"].)
Given our conclusion that section 32310 is constitutional, defendant's trial counsel was not ineffective for failing to argue otherwise because doing so would have been futile. (People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections" to avoid an ineffective assistance of counsel claim.].)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.