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Name: People v. Mary H.
Case #: F071282
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/07/2016

The standard of proof in Welfare and Institutions Code section 8103, subdivision (f)(6) (preponderance of the evidence), which the People bear in order to maintain a five-year firearms ban for a person detained under section 5150, is constitutional. Following her release from a 72-hour psychiatric hold (Welf. & Inst. Code, § 5150), Mary H. filed a petition to lift the automatic five-year prohibition on gun possession (Welf. & Inst. Code, § 8103, subd. (f)). The superior court held a hearing and denied the petition, finding that the People had proven, by a preponderance of the evidence, that she would not be likely to use firearms in a safe and lawful manner. Mary H. appealed on a number of grounds, including that the applicable preponderance of the evidence standard of proof was unconstitutionally low in light of the Second Amendment interest at stake. Held: Affirmed. Under section 8103, subdivision (f), a person who has been detained pursuant to section 5150, may not own, possess, control, receive, or purchase any firearm for a period of five years after the detention but may request a hearing to lift that prohibition. At the hearing, the “people shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.” The Court of Appeal here agreed with the reasoning in In re Jason K. (2010) 188 Cal.App.4th 1545, where the court upheld the preponderance of the evidence standard in section 8103, subdivision (f)(6). Although there are Second Amendment interests at stake, an individual’s temporary loss of the right to possess firearms is outweighed by the state’s “strong interest in protecting society from the potential misuse of firearms by a mentally unstable person.” (Rupf v. Yan (2000) 85 Cal.App.4th 411, 423.) Furthermore, the risk of an erroneous deprivation is not so great as to require a higher standard of proof.

Section 8103, subdivision (f)(6) is not unconstitutionally vague. Mary H. argued that subdivision (f)(6)’s standard—”would not be likely to use firearms in a safe and lawful manner”—is so vague it allows arbitrary and discriminatory enforcement. The Court of Appeal disagreed. A statute is unconstitutionally vague if it fails to provide adequate notice of the proscribed conduct or lacks “sufficiently definite guidelines . . . in order to prevent arbitrary and discriminatory enforcement.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107.) Subdivision (f)(6)’s operative terms are all either “common and generally accepted” or “can be fairly ascertained by reference to similar statutes or other judicial determinations, or to the common law or the dictionary.” (Quoting In re Mariah T. (2008) 159 Cal.App.4th 428, 435.)

An order denying a petition for restoration of firearm ownership under Welfare and Institutions Code section 8103, subdivision (f) is appealable. Appellate jurisdiction exists from final judgments entered in a special proceeding unless the state creating the special proceeding states otherwise. A petition under section 8103, subdivision (f) requesting relief from a firearms prohibition is a special proceeding and an order denying relief under that section is a final judgment. Additionally, section 8103 does not prohibit an appeal.

A person appealing the denial of a request under section 8103, subdivision (f) is not entitled to appointed counsel on appeal. As a matter of state statutory law, Mary H. is not entitled to appointed counsel. Government Code section 27706, subdivision (d) gives individuals the right to counsel in proceedings under “Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.” Section 8103 is part of Division 8 and, as a result, Government Code section 27706 does not apply. Nor is she entitled to appointed counsel as a matter of procedural due process. The test has two parts: a balancing of the factors set forth in Matthews v. Eldridge (1976) 424 U.S. 319 and a presumption that a person only has a right to appointed counsel where a loss of personal freedom is at stake. Here, the Matthews factors do not weigh in Mary H.’s favor and she does not stand to lose her physical liberty. Appointed counsel is not required.

The full opinion is available on the court’s website here: