City of San Jose v. Rodriguez CA6 ( 2015 )

Filed 4/2/15 City of San Jose v. Rodriguez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
CITY OF SAN JOSE, H040317
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 1-13-CV241669)
v.
EDWARD V. RODRIGUEZ,
Defendant;
LORI RODRIGUEZ,
Intervener and Appellant.
I. INTRODUCTION
The City of San Jose police officers who responded to a domestic disturbance call
at the home of Edward V. Rodriguez determined that he was a danger to himself and
others and had him transported to Santa Clara Valley Medical Center for 72-hour
treatment and evaluation under Welfare and Institutions Code section 5150.1 The police
officers also seized 12 firearms from the home pursuant to section 8102, subdivision (a),
which requires confiscation of any firearms owned by or found in the possession or
control of a person detained for an examination of his or her mental condition.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
The City of San Jose (City) subsequently filed a petition for disposition of the
firearms in which the City requested a court order allowing forfeiture of the confiscated
firearms pursuant to section 8102, subdivision (c). Edward V. Rodriguez’s wife,
appellant Lori Rodriguez, opposed the petition and sought return of the firearms to her.2
After an evidentiary hearing, the trial court determined that return of the confiscated
firearms to the Rodriguez home would be likely to result in the endangerment of Edward
or others, and granted City’s petition.
On appeal, Lori contends that the trial court erred because the order granting
City’s petition is not supported by substantial evidence of danger and also violates her
right to keep and bear arms under the Second Amendment to the United States
Constitution. For the reasons stated below, we determine that the trial court’s order under
section 8102, subdivision (a) is supported by substantial evidence. We also determine
that Lori has not shown that her Second Amendment rights were violated by the trial
court’s order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. City’s Petition for Disposition of the Firearms
On February 22, 2013, City filed a petition for disposition of the firearms pursuant
to section 8102, subdivision (c) that named Edward as the respondent. City stated that
the firearms that were the subject of the petition came into police custody on January 24,
2013, when police officers responding to a domestic disturbance call at the Rodriguez
home determined that Edward was a danger to himself or others. Edward was then
transported to a medical center on a 72-hour hold for medical treatment and a
2
Since Edward V. Rodriguez and appellant Lori Rodriguez have the same
surname, we will refer to them by their first names for purposes of clarity and meaning
no disrespect.
2
psychological evaluation pursuant to section 5150. After Edward was transported, police
officers conducted a protective sweep and confiscated 12 firearms from the home.
In its petition, City requested that the trial court make a finding under section 8102
as to whether return of the weapons would be likely to endanger Edward or others and,
if the finding of danger was made, order that the petition be granted and the weapons
forfeited. Alternatively, if no finding of danger was made, City requested that the
San Jose Police Department retain custody of the weapons for no more than two years
unless Edward obtained a court order allowing their return.
B. Lori’s Response to City’s Petition
Edward did not file a response to City’s petition for disposition of firearms. Lori
filed a response in opposition to the petition in which she designated herself as Edward’s
“co-respondent.” In her supporting declaration, Lori stated that she had been married
to Edward for nearly 20 years; Edward was placed on a psychiatric hold pursuant to
section 5150 on January 24, 2013; Edward was currently prohibited from owning,
acquiring, or possessing firearms or ammunition; and the confiscated firearms had been
kept in a safe in their home and were community property.
Lori further declared that no firearms were involved in the event that triggered
Edward’s January 24, 2013 episode; she had opened the gun safe for the police officers
who took all of their firearms; and she acknowledged that she had a legal duty to prevent
Edward from obtaining access to any firearms or ammunition under her control while he
remained a prohibited person. Additionally, Lori attached documents to her declaration
that showed her ownership of a firearm safe and her April 2013 change to the safe’s
combination.
In her hearing brief, Lori argued that the trial court had “no power to interfere with
[her] Second Amendment ‘right to keep and bear arms,’ ” since she was not prohibited
from acquiring or possessing firearms and had promised to take all steps required under
California law to secure the firearms in a gun safe.
3
On June 21, 2013, the parties filed a stipulation and order stating that the parties
agreed that “Lori Rodriguez has standing in this action in that she has at least a
community property interest in the firearms at issue in these proceedings.”
C. Evidentiary Hearing
The following is a summary of the evidence presented at the August 9, 2013
evidentiary hearing on City’s petition.
On January 24, 2013, Police Officer Steven Valentine and other City of San Jose
police officers arrived at the Rodriguez home to investigate a domestic disturbance. They
were responding to Lori’s 911 call regarding Edward’s behavior and her concern that he
might be suffering from a mental illness. Police officers had previously responded to at
least two calls of a domestic disturbance at the Rodriguez home and were aware that
there were firearms in the home.
Upon his arrival at the Rodriguez home on January 24, 2013, Officer Valentine
observed that Edward was perspiring heavily and had rapid respiration. Officer
Valentine also observed that Lori was afraid of Edward. Edward claimed that he was
affiliated with the CIA, was acting irrationally, and had bizarre and aggressive
mannerisms. Officer Valentine believed that Edward was delusional.
When Officer Valentine asked Edward if he wanted to hurt himself, Edward
responded by attempting to break his own thumb. Based on his observations and
Edward’s attempt to hurt himself, Officer Valentine determined that Edward, who
weighed nearly 400 pounds, was a danger to himself and others.
San Jose Fire Department personnel and medical personnel arrived to transport
Edward to Santa Clara Valley Medical Center (VMC) for a 72-hour hold and
psychological evaluation pursuant to former section 5150.3 After Edward was secured on
3
At the time of Edwards’s detention, former section 5150 provided in part:
“When any person, as a result of mental disorder, is a danger to others, or to himself or
(continued)
4
the gurney, he continued to break the restraints. Medical personnel requested that a
police officer accompany them in the ambulance. Edward was then transported to VMC,
where he was determined to be a danger to himself and others and admitted to the
hospital pursuant to former section 51514 and section 5152.5
Officer Valentine remained at the Rodriguez home after Edward was transported.
He advised Lori that that he would need to confiscate the weapons in the home pursuant
to section 8102. Lori unlocked a gun safe by using the key she kept in her possession and
a combination lock. Police officers then removed 12 firearms, including three revolvers,
three shotguns, a handgun, a rifle, and four semi-automatic rifles. Police officers did
not find any firearms outside the gun safe. The firearms had been purchased by Lori or
Edward or acquired from her family. Although one firearm belonged to Lori, all
12 firearms were confiscated because Edward had access to them.
In February 2013, City filed a petition for disposition of the firearms to which Lori
filed a response in April 2013. In May 2013, Lori received notification from the
herself, or gravely disabled, a peace officer, member of the attending staff, as defined by
regulation, of an evaluation facility designated by the county, designated members of a
mobile crisis team provided by Section 5651.7, or other professional person designated
by the county may, upon probable cause, take, or cause to be taken, the person into
custody and place him or her in a facility designated by the county and approved by the
State Department of Social Services as a facility for 72-hour treatment and evaluation.”
4
At the time of Edward’s detention, former section 5151 provided in part: “If the
facility for 72-hour treatment and evaluation admits the person, it may detain him or her
for evaluation and treatment for a period not to exceed 72 hours. . . . Prior to admitting a
person to the facility for 72-hour treatment and evaluation pursuant to Section 5150, the
professional person in charge of the facility or his or her designee shall assess the
individual in person to determine the appropriateness of the involuntary detention.”
5
Section 5152, subdivision (a) provides in part: “Each person admitted to a
facility for 72-hour treatment and evaluation under the provisions of this article shall
receive an evaluation as soon as possible after he or she is admitted and shall receive
whatever treatment and care his or her condition requires for the full period that he or she
is held.”
5
California Department of Justice Bureau of Firearms that she is eligible to both possess
and purchase firearms. At the hearing, Lori testified that she has not committed a felony
and has not been detained under section 5150.
D. Trial Court Order
In its order of September 30, 2013, the trial court granted City’s petition for
disposition of weapons. The order also states: “The City agrees to hold the weapons
pending final disposition or resolution of this matter in accordance with its general
practices.”
During the hearing on the petition, the trial court provided the court’s reasoning
for granting the petition. The court stated: “I mean the elephant in the room is [Edward]
goes back and somehow he overpowers [Lori] or pressures her or something to open the
safe. I mean that’s a real concern I have. At the end of the day this is a public safety
issue. The guns are right there. They’re low hanging fruit. Yeah, they’re behind the
safe. But, you know, I don’t know the dynamics of the relationship. I know the police
have been out there. I know there is a history of instability. I’m real concerned about
releasing these weapons back to home, even behind the safe, when he’s got . . . the ability
to, you know, coerce [Lori] somehow into opening that safe. That concerns me.”
The trial court also stated: “[A]t the end of the day, is what my responsibility is,
is public safety. And that’s what guides me. And I’m not saying I’m ignoring her
Constitutional Rights or anybody else’s rights. . . . I have to determine whether it’s
appropriate to release those guns given the facts in this particular case and the situation.”
The court then ruled, “I’m not going to order the release of the guns to the respondent.
I don’t think it’s appropriate under the circumstances.”
The trial court’s order did not require forfeiture or destruction of the confiscated
firearms. During the hearing, City’s attorney noted that other options were available for
disposition of the firearms: “The City has proposed a few options. Either the guns be
held at another location away from the home. They could also be sold. The City is
6
certainly interested or willing to enter into that type of stipulation to sell them through a
third party gun dealer. Or they could be held in the house if they’re rendered inoperable.”
As to Lori’s claim of a community property interest in the confiscated firearms,
the trial court stated: “I think there are viable alternatives that need to be explored. This
is the community possession of the respondent and whether it’s by sale or release to a
separate place. I’m going to let you folks work that out. So with respect to the request to
release the guns back to [Lori], I’m going to deny that request.”
Thereafter, Lori filed a notice of appeal from the September 30, 2013 order.
III. DISCUSSION
On appeal, we understand Lori to challenge the trial court’s order granting City’s
petition for disposition of firearms on two grounds, insufficiency of the evidence and
violation of her Second Amendment right to keep and bear arms. We will begin our
evaluation of her claims with an overview of the statutory framework for the confiscation
of firearms from a person who has been detained for examination of his or her mental
condition and the disposition of confiscated firearms.
A. The Statutory Framework
“Two firearm statutes come into play when a person is detained under
section 5150 as a danger to himself [or herself] or others. Section 8103 will prohibit his
[or her] possession of firearms for a five-year period.[6] Section 8102[7] authorizes
6
Section 8103, subdivision (f)(1) provides in part: “No person who has been
(A) taken into custody as provided in Section 5150 because that person is a danger to
himself, herself, or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections 5151 and 5152
because that person is a danger to himself, herself, or others, shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the facility.” The person may
request a hearing to lift the restriction. (§ 8103, subd. (f)(3).)
7
Section 8102, subdivision (a) provides in part: “Whenever a person, who has
been detained or apprehended for examination of his or her mental condition . . . is found
(continued)
7
confiscation of any weapons he [or she] already possesses.” (People v. Keil (2008) 161
Cal. App. 4th 34, 37 (Keil).) Section 8102 also authorizes “possible forfeiture of weapons
belonging to persons detained for examination under section 5150 because of their mental
condition. [Citations.]” (City of San Diego v. Boggess (2013) 216 Cal. App. 4th 1494,
1500 (City of San Diego).)
As stated in City of San Diego, “ ‘[s]ection 8102 directly safeguards public health
and safety by allowing law enforcement officers to confiscate any firearm in the
possession or control of a person who is appropriately detained or apprehended for a
mental examination. Keeping a firearm away from a mentally unstable person is a
reasonable exercise of the police power. It is not unreasonable to conclude there is a
significant risk that a mentally unstable gun owner will harm himself [or herself] or
others with the weapon.’ [Citation.]” (City of San Diego, supra, 216 Cal.App.4th at
p. 1500.)
The statutory scheme also provides the procedure for the return of the confiscated
firearms to the person who was detained under section 5150. At the time of the
August 2013 hearing on City’s petition for disposition of firearms, former section 8102,
subdivision (b) (now § 8102, subd. (b)(2)) provided in part: “Where the person is
released, the professional person in charge of the facility, or his or her designee, shall
notify the person of the procedure for the return of any firearm or other deadly weapon
which may have been confiscated.”
If the law enforcement agency that confiscated the firearms does not make the
firearms available for return upon release of the detained person, the person may request
to own, have in his or her possession or under his or her control, any firearm whatsoever,
or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by
any law enforcement agency or peace officer, who shall retain custody of the firearm or
other deadly weapon.”
8
a hearing on return of the firearms. (§ 8102, subds. (e), (f).) The law enforcement
agency may also request a hearing: “Upon the release of a person as described in
subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a
petition in the superior court for a hearing to determine whether the return of a firearm or
other deadly weapon would be likely to result in endangering the person or others, and to
send a notice advising the person of his or her right to a hearing on this issue.” (§ 8102,
subd. (c).) “Section 8102 thus ‘places the onus upon law enforcement to initiate the
forfeiture proceeding, and to bear the burden of proof on the issue of the danger presented
by return of the weapons.’ [Citations.]” (City of San Diego, supra, 216 Cal.App.4th at
p. 1500.)
“If, after a hearing, the court determines that the return of the firearm or other
deadly weapon would likely endanger the person or others, the law enforcement agency
may destroy the firearm within 180 days from the date that the court makes that
determination, unless the person contacts the law enforcement agency to facilitate the
sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal
Code.” (§ 8102, subd. (h).)
The standard of review for the trial court’s order granting a petition for disposition
of firearms under section 8102 is substantial evidence. (City of San Diego, supra, 216
Cal.App.4th at p. 1501.) “In determining whether a trial court’s ruling is supported by
substantial evidence, the appellate court should view the whole record in the light most
favorable to the ruling, resolving all evidentiary conflicts and drawing all reasonable
inferences supporting the court’s decision. [Citation.]” (Ibid.) “We affirm if ‘substantial
evidence supports the court’s determination that return of the firearms to appellant would
be likely to result in endangering appellant or other persons.’ [Citation.]” (Keil, supra,
161 Cal.App.4th at p. 38.)
9
B. Analysis
1. Substantial Evidence
We understand Lori to argue on appeal that the trial court’s order granting City’s
petition for disposition of firearms and declining to return the firearms to her is not
supported by substantial evidence. According to Lori, the evidence showed that she is
not prohibited from owning or possessing firearms and if the confiscated firearms were
returned to her, she could secure them in a gun safe to prevent Edward from having
unauthorized access. Lori also offers to have the title to the firearms transferred to her.
In addition, Lori points out that City’s counsel conceded during the hearing that there is
nothing to prevent her from buying more firearms and bringing them to the Rodriguez
home.
In response, City relies on the statement in City of San Diego that “ ‘[t]he court
may properly consider whether the circumstances leading to the section 5150 detention
might occur again and whether possession or control of those confiscated weapons in
such circumstance would pose a risk of danger to appellant or to others.’ [Citation.]”
(City of San Diego, supra, 216 Cal.App.4th at p. 1502.) City asserts that the undisputed
evidence shows that the circumstances here included Edward’s behavior when Officer
Valentine detained him, as well as Edward’s size and the prior police responses to the
Rodriguez home. City also asserts that return of the confiscated firearms to Lori would
have “the practical effect of returning them to Edward,” who is prohibited from accessing
firearms.
We begin by noting that section 8102 expressly provides the procedure for the
return of firearms confiscated by a law enforcement agency only to the person who was
detained under section 5150. Section 8102 is silent as to the return of the confiscated
firearms to any other person. Accordingly, the only issue to be decided at a hearing
under section 8102, subdivision (c) is whether return of the firearms to the previously
detained person “would be likely to result in endangering the person or others.” (§ 8102,
10
subd, (c); see also id., subd. (h).) On appeal from a trial court order denying return of
confiscated firearms under section 8102, the reviewing court decides the narrow issue of
whether substantial evidence supports the trial court’s determination that return of the
firearms to the person who was detained under section 5150 would be likely to result in
endangering that person or other persons. (Keil, supra, 161 Cal.App.4th at p. 38.)
In this case, Edward did not oppose the City’s petition for disposition of the
firearms. The parties filed a stipulation and order stating that the parties agreed that
“Lori Rodriguez has standing in this action in that she has at least a community property
interest in the firearms at issue in these proceedings.” Since the parties stipulated that
Lori has standing in this matter, we will consider whether the trial court’s order granting
City’s petition is supported by substantial evidence that return of the firearms to the
Rodriguez home would be likely to result in endangering Edward or others. (§ 8102,
subds. (c), (h).)
Having reviewed the record in the light most favorable to the trial court’s order
(City of San Diego, supra, 216 Cal.App.4th at p. 1501), we agree with City that the trial
court’s order is supported by substantial evidence. The evidence showed that there had
been two prior calls of a domestic disturbance at the Rodriguez home; Lori made the 911
call regarding Edward’s condition on the day of his detention; Lori appeared to be afraid
of Edward; Edward’s behavior was bizarre and delusional; Edward had attempted to
break his own thumb; Edward weighed 400 pounds and had broken free of the gurney
restraints; and medical personnel had requested that a police officer accompany them in
the ambulance transporting Edward to the hospital. VMC personnel then determined that
Edward was a danger to himself and others and he was admitted to the hospital pursuant
to sections 5151 and 5152. Moreover, the trial court was not convinced by Lori’s
testimony that she could safely store the firearms and prevent Edward from having access
to them. “ ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal. 4th 47, 60.)
11
We therefore conclude that substantial evidence supports the trial court’s order
granting City’s petition for disposition of firearms under section 8102 on the ground that
return of the confiscated firearms to the Rodriguez home would be likely to result in
endangering Edward or others.
2. Constitutional Claim
Lori’s chief contention on appeal is that the trial court’s order granting City’s
petition for disposition of firearms violates her Second Amendment right to keep and
bear arms for home protection. She explains that “[d]epriving an owner of her own guns
deprives her of the value of the property and means of exercising the core right of self-
defense. [Citation.]” City urges that Lori’s constitutional and community property rights
may be lawfully impacted by a lawful restriction on her husband Edward’s property
interest in the confiscated firearms.
At the outset, we note that Lori does not challenge the trial court’s order as
violating Edward’s Second Amendment rights. Constitutional challenges to the trial
court’s refusal under section 8102 to return confiscated firearms to a person who was
detained due to his or her mental condition have been rejected. (See Rupf v. Yan (2000)
85 Cal. App. 4th 411, 427-428; People v. One Ruger .22-Caliber Pistol (2000) 84
Cal. App. 4th 310, 312.)
Lori’s constitutional claim involves only her own Second Amendment right to
keep and bear arms. For several reasons, we determine that Lori has not shown that her
Second Amendment rights were violated by the trial court’s September 30, 2013 order
granting City’s petition for disposition of firearms.
First, Lori acknowledges in her opening brief that the trial court’s order does not
bar her from acquiring new firearms, noting the trial court’s “uncontradicted finding . . .
that Lori cannot be prohibited from acquiring new firearms.” Lori further acknowledges
that under section 8101, she may not allow Edward access to any new firearms that she
may acquire. Section 8101 provides: “(a) Any person who shall knowingly supply, sell,
12
give, or allow possession or control of a deadly weapon to any person described in
Section 8100 or 8103 shall be punishable by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code, or in a county jail for a period of not exceeding one year,
by a fine of not exceeding one thousand dollars ($1,000), or by both the fine and
imprisonment. [¶] (b) Any person who shall knowingly supply, sell, give, or allow
possession or control of a firearm to any person described in Section 8100 or 8103 shall
be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for two, three, or four years.”
Second, we understand Lori to argue that she has a Second Amendment right to
return of the particular firearms that were confiscated under section 8102 for home
protection. However, Lori has not provided any legal authority for the proposition that
the spouse of a person whose firearms were confiscated under section 8102 has a Second
Amendment right to the return of those confiscated firearms for home protection. In her
briefing, she generally argues that the United States Supreme Court expanded Second
Amendment rights in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) and
McDonald v. City of Chicago (2010) 561 U.S. 742 (McDonald).
However, the Supreme Court decisions in Heller and McDonald did not state that
the Second Amendment right to keep and bear arms extends to keeping and bearing either
any particular firearms or firearms that have been confiscated from a mentally ill person.
Moreover, the Heller and McDonald decisions may be read to the contrary.
The McDonald court reiterated that “[i]n Heller, we held that the Second
Amendment protects the right to possess a handgun in the home for the purpose of self-
defense.” (McDonald, supra, 561 U.S. 742, 791.) However, the court also stated: “It is
important to keep in mind that Heller while striking down a law that prohibited the
possession of handguns in the home, recognized that the right to keep and bear arms is
not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.’ [Citation.] We made it clear in Heller that our holding did not cast
13
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of
firearms by felons and the mentally ill,’ . . . . [Citation.]” (McDonald, supra, 561 U.S. at
p. 786, italics added.)
Third, we note that the trial court’s order does not actually require forfeiture or
destruction of the confiscated firearms. Both the trial court and City’s attorney suggested
there were other viable options for disposition of the firearms, such as sale or storage
outside the home.
Finally, we consider whether the provisions of Penal Code section 33850 et seq.
impact Lori’s Second Amendment claim. Lori has acknowledged that Penal Code
section 33850 provides a procedure for the return of firearms in police custody to persons
who claim ownership of the firearms.
Under Penal Code section 33850, a “person who claims title to any firearm” in
law enforcement custody may seek the return of that firearm. (Pen. Code, § 33850,
subd. (a).) 8 The person seeking return of any firearms must file an application for a
Penal Code section 33865 notification that specifies the make and model of the firearms
that are being sought and provides detailed information about any handguns. (Pen. Code,
§§ 33850, 33865, subd. (c)(3).) The firearms cannot be returned by a court or law
enforcement agency unless the person seeking them obtains a Penal Code section 33865
notification that the person is eligible to possess a firearm and “the firearm has been
recorded in the Automated Firearms System in the name of the individual who seeks its
return.” (Pen. Code, § 33855, subd. (b).)
8
Penal Code section 33850, subdivision (a) provides in part: “Any person who
claims title to any firearm that is in the custody or control of a court or law enforcement
agency and who wishes to have the firearm returned shall make application for a
determination by the Department of Justice as to whether the applicant is eligible to
possess a firearm.”
14
After oral argument, we asked the parties to provide supplemental briefing with
respect to the impact of Penal Code section 33850 et seq. on Lori’s Second Amendment
claim, by responding to the following questions: (1) “The record on appeal includes a
copy of a May 8, 2013 Department of Justice Bureau of Fireams notice stating that Lori
Rodriguez is ‘eligible to both possess and purchase firearms as of the date the [personal
firearms eligibility] check was completed.’ What evidence in the record, if any, shows
that Rodriguez either has or has not sought return of the confiscated firearms under the
procedure provided by Penal Code section 33850 et seq?”; (2) “Assuming that Rodriguez
has not sought return of the confiscated firearms under Penal Code section 33850 et seq.,
what is the impact on her claim that the trial court’s order of September 30, 2013, violates
her rights under the Second Amendment?”; and (3) “Assuming that Rodriguez has sought
return of the confiscated firearms under Penal Code section 33850 et seq., what is the
impact on her claim that the trial court’s order of September 30, 2013, violates her rights
under the Second Amendment?”
In their supplemental briefing, the parties agree that the record does not indicate
that Lori has sought return of the confiscated firearms under the procedure provided by
Penal Code section 33850 et seq. We understand Lori to contend that her failure to
utilize the firearms return procedure provided by Penal Code section 33850 et seq. has no
impact on her Second Amendment claim, for three reasons. First, Lori asserts that she
properly sought return of the confiscated firearms by intervening in City’s petition for
disposition of firearms under section 8102. Second, Lori maintains that she may raise a
constitutional claim without exhausting the administrative remedy provided by Penal
Code section 33850 et seq. Finally, Lori appears to argue that the trial court proceedings
on City’s section 8102 petition precluded her from seeking return of the confiscated
firearms under Penal Code section 33850.
City responds that whether or not Lori has sought return of the confiscated
firearms under Penal Code section 33850 et seq. has no impact on her claim that the
15
trial court’s September 30, 2013 order violates her Second Amendment rights. City
notes that prior to amendment in 2013, section 8102 was silent as to Penal Code
section 33850 et seq.,9 and emphasizes its position that the trial court’s order is
constitutional because substantial evidence supports the trial court’s finding that return of
the confiscated firearms would likely endanger Edward and others.
The parties’ supplemental briefing confirms that Lori has not sought return of the
confiscated firearms under the procedure provided by Penal Code section 33850 et seq.,
although the firearms remain in the custody of law enforcement and Lori has obtained
notification from the California Department of Justice Bureau of Firearms that she is
eligible to both possess and purchase firearms. Lori has not provided any authority for
the proposition that trial court proceedings on a section 8102 petition preclude a person
who claims title to the confiscated firearms from seeking their return under Penal Code
section 33850 et seq. Moreover, we believe that the record on appeal shows that the
9
As amended in 2013, section 8102, subdivision (b) provides: “(1) Upon
confiscation of any firearm or other deadly weapon from a person who has been detained
or apprehended for examination of his or her mental condition, the peace officer or law
enforcement agency shall issue a receipt describing the deadly weapon or any firearm and
listing any serial number or other identification on the firearm and shall notify the person
of the procedure for the return, sale, transfer, or destruction of any firearm or other deadly
weapon which has been confiscated. A peace officer or law enforcement agency that
provides the receipt and notification described in Section 33800 of the Penal Code
satisfies the receipt and notice requirements. [¶] (2) If the person is released, the
professional person in charge of the facility, or his or her designee, shall notify the person
of the procedure for the return of any firearm or other deadly weapon which may have
been confiscated. [¶] (3) Health facility personnel shall notify the confiscating law
enforcement agency upon release of the detained person, and shall make a notation to the
effect that the facility provided the required notice to the person regarding the procedure
to obtain return of any confiscated firearm. [¶] (4) For purposes of this subdivision, the
procedure for the return, sale, or transfer of confiscated firearms includes the procedures
described in this section and the procedures described in Chapter 2 (commencing with
Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.” (Stats. 2013,
ch. 747, § 2.)
16
procedure provided by section 33850 et seq. for return of firearms in the possession of
law enforcement remains available to Lori.
We therefore determine that Lori has failed to show that the trial court’s
September 30, 2013 order violates the Second Amendment by precluding her from
keeping firearms for home protection. In the absence of any evidence that Lori’s Second
Amendment right to keep and bear arms was actually violated by the trial court’s
September 30, 2013 order granting City’s petition for disposition of firearms under
section 8102, we conclude that her Second Amendment claim lacks merit.
Having also determined that the order may be affirmed under section 8102
because the order is supported by substantial evidence that return of the confiscated
firearms to the Rodriguez home would be likely to result in endangering Edward or
others, we will affirm the order.
IV. DISPOSITION
The September 30, 2013 order is affirmed.
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BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
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MIHARA, J.
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GROVER, J.