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Name: People v. Ellison
Case #: E050395
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/28/2011

Statute prohibiting carrying a concealed, loaded weapon does not violate Second Amendment. Appellant challenged his conviction for carrying a loaded, concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)(1)) on the grounds the statute is unconstitutionally overbroad and infringed on his right to bear arms because it does not except situations of self defense. However, appellant’s conviction does not violate his Second Amendment rights, “as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570.” The Court of Appeal applied an “intermediate scrutiny” standard of review because section 12025 does not completely ban or unduly burden the right to bear arms, as did the law at issue in Heller. Carrying a concealed weapon in a vehicle presents a threat to public safety and may be regulated as necessary to prevent harm to others. “The statute is narrowly tailored to protect the public by prohibiting only the unregistered carrying of concealable firearms in a vehicle.”

Prosecutorial misconduct during argument was cured by cautioning the jury to disregard it. The prosecutor’s arguments regarding the reasonable doubt standard improperly attempted to lessen the state’s burden of proof by asking the jury to consider whether appellant’s innocence was “reasonable.” This argument persisted despite the court’s sustaining defense objections. But the jury was properly instructed as to the reasonable doubt standard and told to follow the instructions. Any error was harmless in light of appellant’s admission he carried the weapon and the correct instructions given.