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Name: People v. Delacy
Case #: A125803
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 02/25/2011

Penal Code section 12021, subdivision (c)(1), prohibiting persons convicted of specified misdemeanors from possessing a firearm, does not violate the Second Amendment or equal protection. Appellant was convicted of unlawful possession of a firearm by a misdemeanant (Pen. Code, sec. 12021, subd. (c)(1)) and unlawful possession of ammunition (Pen. Code, sec. 12316, subd. (b)(1)). On appeal he challenged the constitutionality of section 12021, subdivision (c)(1), arguing it violates the Second Amendment and equal protection. The court rejected the arguments. In District of Columbia v. Heller (2008) 554 U.S. 570, the High Court recognized an individual’s right to possession of a firearm unconnected with militia service, but it also affirmed certain traditional limitations on the right, such as prohibiting convicted felons from possessing firearms. Based on this, People v. Flores (2008) 169 Cal.App.4th 568, upheld the validity of section 12021, subdivision (c), finding “no principled argument that the government cannot also add certain misdemeanants.” The court rejected appellant’s claim that Flores is distinguishable because he was convicted of simple battery, not assault with means of force likely to produce great bodily injury because it disagreed with appellant’s characterization of battery as a non-violent crime. As to the equal protection argument, because the class of persons appellant belongs to is disqualified from exercising Second Amendment rights, he cannot claim a fundamental right and so the rational basis test, not strict scrutiny, applies. (See U.S. v. Vongxay (9th Cir. 2010) 594 F.3d 1111.) Applying this test, the Legislature’s differing treatment does bear a fair relationship to a legitimate public purpose. Use of out-of-state misdemeanors would raise due process concerns because it is possible other jurisdictions do not afford misdemeanor crimes the same due process California does. Also, it would be difficult for the Legislature to craft effective legislation because the diversity of misdemeanors makes identifying ones in other states a “daunting task.” The dissent would have held that the statute does in fact violate equal protection because a conviction for similar misdemeanor conduct in other jurisdictions has no comparable consequence.