California Court of Appeal Nov 29, 2023 No. E080413Unpublished
Filed 11/29/23 P. v. Rivera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080413
v. (Super.Ct.No. FWV21004088)
MIGUEL ANGEL RIVERA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M.
Friedman, Deputy Attorney Generals, for Plaintiff and Respondent.
1
Defendant and appellant Miguel Angel Rivera, who had suffered a prior felony
conviction, was found in possession of parts belonging to an AR-15 rifle, including upper
and lower receivers. A firearms expert testified as to the parts and that defendant
possessed a lower receiver, which met the requirements of a firearm under Penal Code
“ ‘As a general rule, a trial court has wide discretion to admit or exclude expert
testimony. [Citations.] An appellate court may not interfere with the exercise of that
discretion unless it is clearly abused. ’ ” (People v. Valdez (1997) 58 Cal.App.4th 494,
506; see also People v. Brown, supra, 59 Cal.4th at p. 101.)
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Defendant does not dispute that Bremner could testify as an expert on firearms.
He contends the expert stated that the lower receiver was a firearm thereby usurping the
role of the jury to make such a decision. However, these statements made by Bremner
were either stricken after defense counsel’s objections, or defendant failed to object,
waiving the issue on appeal.
3. WAIVER AND STRICKEN TESTIMONY
Initially, there were two times in which Bremner stated that the lower receiver, as
drilled, met the description of a firearm under the law. Both times, defendant objected
and the trial court struck the testimony. As such, the jury was not to consider the
testimony in reaching its decision on the charge. The jury was instructed, “During the
trial, the attorneys may have objected to questions or moved to strike answers given by
the witnesses.[6] I ruled on the objections according to the law. If I sustained an
objection, you must ignore the question. If the witness was not permitted to answer, do
not guess what the answer might have been or why I ruled as I did. If I ordered testimony
stricken from the record, you must disregard it and must not consider that testimony for
any purpose.” We must presume the jurors followed the given instructions and did not
consider the testimony. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Moreover, defendant failed to object to the other instances in which Bremner
referred to the drilled and milled lower receiver as a firearm. On cross-examination,
Bremner testified that a solid receiver, one which had not been drilled like the one found
6 Prior to trial, the jury was similarly instructed.
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in defendant’s room, would not qualify as a firearm. There was no objection by
defendant. Bremner also testified that if holes were drilled in a receiver, it was a
completed firearm. There was no objection by defendant. On redirect, Bremner testified
that drilling a hole in a lower receiver was manufacturing a firearm. There was no
objection.
The failure of defendant to object to the testimony waives the issue on appeal.
(Evid. Code, § 353, subd. (a); People v. Ramos (1997) 15 Cal.4th 1133, 1171 [“ ‘A party
desiring to preserve for appeal a challenge to the admission of evidence must comply
with the provisions of Evidence Code section 353, which precludes reversal for erroneous
admission of evidence unless: “There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated to make clear the
specific ground of the objection or motion”].) An objection in this case would not have
been futile as earlier objections to Bremner’s use of the term firearm had been sustained
and the testimony stricken. As such, defendant waived any claim regarding Bremner
expressing his opinion on the ultimate issue to be decided by the jury.
4. PREJUDICE
Although we do not find any error in this case, even if there was any conceivable
error in the admission of Bremner’s testimony, it was harmless. State law evidentiary
errors generally do not rise to the level of federal constitutional error. (People v.
Benavides (2005) 35 Cal.4th 69, 91.) Rather, they are reviewed under the Watson
standard for whether it is reasonably probable the result would have been different absent
the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
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As noted, the jury was instructed with CALCRIM No. 2511 that a receiver
qualifies as a firearm. Both Waidley and Bremner testified that defendant possessed a
lower receiver. Although Bremner testified that the receiver had to be milled or drilled in
order to be considered a firearm, we have found no authority which supports such further
requirement. It was sufficient for the jury to be advised that a lower receiver for an AR-
15 weapon was found in defendant’s room and it was in his control. Thus, it is
inconceivable the jury determined that the lower receiver was a firearm pursuant to
section 29800 based on Bremner’s testimony. It need only determine that defendant
possessed a lower receiver to find him guilty. Based on the instructions given and the
testimony, the jury properly determined that defendant was guilty of possession of a
firearm by a felon.
B. CONSTITUTIONALITY OF SECTION 29800
Defendant claims that his conviction for possession of a firearm by a felon is an
unconstitutional violation of his right to bear arms under the Second Amendment to the
United States Constitution and must be reversed. This court recently rejected this
identical claim in People v. Alexander (2023) 91 Cal.App.5th 469, 479 (Alexander).) We
see no reason to revisit the finding in Alexander and agree that section 29800 does not
violate the Second Amendment.
The Second Amendment specifies: “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.) Recently, the United States Supreme Court
clarified the test for assessing constitutionality under the Second Amendment and, held
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that “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s ‘unqualified command.” ’ [Citation.] Bruen further
explained that in assessing whether a modern firearm regulation has a ‘relevantly similar’
historical analogue [citation], courts should consider ‘at least two metrics: how and why
the regulations burden a law-abiding citizen’s right to armed self-defense.’ ” (Alexander,
supra, 91 Cal.App.5th 469, 476.)
In Alexander, the defendant argued that under the framework set forth in Bruen,
section 29800, which prohibits the possession of firearms by convicted felons, was
facially unconstitutional. Specifically, he argued that section 29800, subdivision (a)(1),
was “facially invalid under the Second Amendment because [it] violate[d] his ‘Second
Amendment right to bear arms in self-defense under the new standard of review in
Bruen.’ ” (Alexander, supra, 91 Cal.App.5th at p. 474.) This court found that
California’s laws prohibiting felons from possessing firearms do not violate the United
States Constitution. “[T]he Second Amendment protects the individual right of ‘ “law-
abiding, responsible citizens” ’ to possess firearms. [Citations.] Convicted felons, by
definition, are not law-abiding. Felons thus are not among ‘the people’ who have an
individual right to possess firearms under the Second Amendment. [Citation.] We
consequently conclude that [defendant]’s challenges to the constitutionality of section
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29800(a)(1) . . . under the Second Amendment fail under the first step of Bruen’s
analytical framework.” (Id. at p. 479.)
In People v. Odell (2023) 92 Cal.App.5th 307, 317, the court also considered
section 29800, subdivision (a)(1), and agreed with Alexander, finding that section 29800,
subdivision (a)(1), is constitutional. The court noted, “It was no accident the Bruen
majority repeated the qualifier ‘law-abiding’ some 13 times. [Citation.] People who
have been convicted of a felony are not ‘law-abiding.’ ” (Odell, at p. 317.)
We follow the reasoning in Alexander and Odell and reject defendant’s facially
unconstitutional challenge to section 29800.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for possession of a firearm by a convicted felon, holding that the expert's testimony regarding the firearm status of the receiver did not warrant reversal and that Penal Code section 29800 is constitutional under the Second Amendment.
Issues
Whether the trial court erred in admitting expert testimony regarding whether the possessed parts constituted a firearm.
Whether Penal Code section 29800, subdivision (a)(1), is facially unconstitutional under the Second Amendment following the Supreme Court's decision in Bruen.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The failure of defendant to object to the testimony waives the issue on appeal.”