People v. Burts CA5

Filed 12/6/13 P. v. Burts CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065261 Plaintiff and Respondent, (Super. Ct. No. F12901379) v.

EMMANUEL BEN BURTS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Denise L. Whitehead, Judge. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Poochigian, J.

Defendant Emmanuel Ben Burts was convicted by jury of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1)1 and being a felon in possession of ammunition (§ 30305, subd. (a); count 2). He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to seven years in prison. On appeal, defendant contends the two statutes that prohibit a felon from possessing a firearm and ammunition violate his constitutional right to bear arms under the Second Amendment of the United States Constitution. We conclude that the statutes in question do not contravene defendant’s Second Amendment rights as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller). The Second Amendment of the United States Constitution 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.) “The Second Amendment protects an individual’s right to possess and carry weapons in case of confrontation. (Heller, supra, 554 U.S. at pp. 592, 595.) The Second Amendment is fully applicable to the states by the due process clause of the Fourteenth Amendment. (McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020].)” (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347.) Heller explained, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [Citations.] For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [Citations.] 1 All statutory references are to the Penal Code unless otherwise noted.