People v. Davis CA3

Filed 1/23/24 P. v. Davis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Appellant, C097319

v. (Super. Ct. No. 21FE012297)

JOSIAH DAVIS et al.,

Defendants and Respondents.

The People charged defendants Josiah Davis and Demetrius Perry with carrying a firearm concealed in a vehicle (Pen. Code, § 25400, subd. (a)(1))1 and carrying a loaded firearm while in a public place (§ 25850, subd. (a)). The trial court, however, sustained defendants’ demurrers to the information. Although there was no assertion that either defendant had applied for a concealed-carry license, the trial court concluded that because having a concealed-carry license would be a defense to the charged crimes, and California’s concealed-carry licensing statutes at that time included a requirement that the applicant show good cause to obtain a license in violation of the Second Amendment right to keep and bear arms, it was appropriate in this case to dismiss the firearm-carrying charges. The People appeal.

1 Undesignated statutory references are to the Penal Code.

1

We conclude the trial court erred. The prohibition on carrying a concealed weapon under section 25400 does not violate the Second Amendment regardless of whether the licensing scheme was unconstitutional during the relevant time period. (People v. Miller (2023) 94 Cal.App.5th 935 (Miller).) And the crime of carrying a loaded firearm in public under section 25850 does not violate the Second Amendment because the unconstitutionality during the relevant time period of discrete licensing requirements does not render section 25850 facially unconstitutional. (People v. Mosqueda (2023) 97 Cal.App.5th 399, 403, 413-414 (Mosqueda).) We will reverse the judgment and remand the matter to the trial court with directions to overrule defendants’ demurrers to the information. BACKGROUND Section 25400, subdivision (a)(1) provides that a person is guilty of carrying a concealed weapon if 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.” Section 25400 does not apply if the person has a concealed- carry license. (§ 25655.) Section 25850, subdivision (a) provides: “A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city, city and county, or in any public place or on any public street in a prohibited area of an unincorporated area of a county or city and county.” Again, section 25850 does not apply if the person has a concealed-carry license. (§ 26010.) Former section 26150, one of the concealed-carry licensing statutes, provided: “When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following: “(1) The applicant is of good moral character.