Does Supreme Court Bruen Ruling Invalidate PC 25400?

In June 2022, the United States Supreme Court issued its ruling in New York State Rifle & Pistol Association, Inc., v. Bruen (2022) 597 U.S. ___, 142 S. Ct. holding that New York’s “proper cause” requirement for a private person to bear arms in public impermissibly infringed on the Second Amendment right of private citizens to bear arms in public for self-defense. 

New York had required a private citizen to demonstrate a special need for self-protection distinguishable from that of the general community.  The New York law also required the applicant for such a license to be of good moral character, have no history of crime and no history of mental illness.

Gun enthusiasts celebrated the U.S. Supreme Court ruling and those in California had particular reason to celebrate because California’s law at Penal Code §§ 21650 and 21655 includes a similar “good cause” requirement for issuance of a concealed carry permit.  These provisions, the U.S. Supreme Court commented, are analogous to New York’s “proper cause” requirement (five other states share such an unconstitutional standard: Hawaii, Maryland, Massachusetts, New Jersey and the District of Columbia) and therefore, at least in this limited regard, unconstitutional.

Defense attorneys, prosecutors and judges knew it was only a matter of time before a litigant would challenge his or her conviction for carrying a loaded firearm in public, seeking a broad interpretation of Bruen.

Five months later, such a challenge arrived.  In Kern County Superior Court, a jury convicted Christopher Alexander Velez of attempted murder (Penal Code §§ 187, 664), carrying a loaded firearm in public as an active participant in a criminal street gang (Penal Code § 25850(c)), active participation in a criminal street gang (Penal Code § 186.22(a)) and misdemeanor unlawful driving or taking of a vehicle without the owner’s consent (Vehicle Code § 10851(a). 

Velez was a member of the 21st Street gang, a Delano Norte subset of the Norteño street gang.  He was nineteen years old at the time of the shooting.

The judge sentenced Velez to 15 years to life plus 10 years for “vicarious use of the firearm” on the attempted murder, plus a concurrent one year on the 10851(a) charge.  The judge stayed execution of punishment on the 25850(c) and 186.22(a) charges.

Mr. Velez appealed his convictions to the Fifth Appellate District Court in Fresno on ten grounds, but this article’s scope will be limited to his argument since Bruen rendered unconstitutional California’s concealed carry licensing scheme (Penal Code §§ 26150 and 26155) as to “good cause,” his conviction for carrying a firearm without a license (Penal Code § 25850) was consequently unconstitutional and therefore his conviction for violating this section had to be vacated.

The Fifth Appellate District rejected Velez’s argument that California’s entire gun licensing scheme was invalid as a whole and that Penal Code § 25850 was therefore invalid.  The Fifth Appellate District explained that Bruen only struck down a very small portion of California’s gun licensing laws, the requirement that an applicant for a concealed carry permit show “good cause” because Bruen struck down the “proper cause” requirement in New York’s law.

The Fifth Circuit further explained that Velez lacked standing to raise such a constitutional challenge.  The appellate court reminded the reader that “one who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation.”  People v. Conley (2004) 116 Cal. App. 4th 566, 576; see People v. Perry (1931) 212 Cal. 186, 193 [“It is well-settled law that the courts will not give their consideration to questions as to the constitutionality of a statute unless such consideration is necessary to a determination of a real and vital controversy between the litigants in a particular case before it.”].

Here, the Fifth Circuit pointed out, unlike the petitioners in Bruen, the record does not show , nor does Mr. Velez claim, that he applied for and was denied a license to possess the gun in question.  Thus, he lacked standing to challenge the constitutionality of California’s licensing scheme. 

On this issue, Mr. Velez’s appeal was denied.

For more information about possession of a firearm, please click on the following articles: