California Courts of Appeal Reports

PEOPLE v. WILMSHURST, C050103 (Cal.App. 1-8-2007) THE PEOPLE, Plaintiff and Respondent, v. RICHARD E. WILMSHURST, Defendant and Appellant. C050103. Court of Appeal of California, Third District, Calaveras. January 8, 2007. Certified for Partial Publication[fn*]

[fn*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of sections IV, V, VI, VII and VIII of the Discussion.


APPEAL from a judgment of the Superior Court of Calaveras County, Richard K. Specchio (Judge of the Alpine Super. Ct.); Thomas A. Smith (retired Judge of the El Dorado Super. Ct.); and William M. Kelsay (retired Judge of the Santa Cruz Super. Ct.), Judges (all assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed. (Super.Ct. No. F3229).

Thomas M. Marovich for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant
Attorney General, J. Robert Gibson and Janine R. Busch,
Deputy Attorneys General, for Plaintiff and Respondent.

DAVIS, Acting P.J.

A jury convicted defendant Richard Wilmshurst of unlawfully
possessing a machine gun and illegal assault weapons.
Finding this to be an unusual case, the trial court
suspended imposition of sentence and placed him on

On appeal, the defendant contends that the search warrant
used to seize firearms from him, and the use of statements
he made during the search, violated his privilege against
self-incrimination. He also contends that the warrant was
overbroad; that federal law preempts the state firearms
control laws; that he was denied a fair hearing; and that
the jury was improperly instructed.

In the published part of the opinion we hold that including
in the search warrant affidavit information defendant’s
federal firearms license required him to keep and
information from an inspection he was required to submit to
did not violate his privilege against self-incrimination.
Nor do we find that federal law preempts Penal Code
sections 12220, subdivision (a) and 12280, subdivision (b),
which respectively proscribe possession of machine guns and
certain assault weapons. Finding no merit to defendant’s
remaining contentions, we will affirm the judgment.

Because the defendant does not dispute his ownership of
these weapons that are unlawful to possess under state law,
we will not provide a separate summary of facts. Instead,
we will include the facts relevant to his contentions in
the discussion.


I. Procedural and Factual Background


During the course of his preliminary hearing, the defendant
moved to suppress evidence (Pen. Code, §
1538.5),[fn1] asserting the invalidity of the search
warrant on several grounds. The magistrate denied the
motion and held the defendant to answer.

In the superior court, the defendant requested a special
hearing to renew his motion to suppress ( § 1538.5,
subd. (i)), and sought to introduce additional evidence.
The prosecution objected to the receipt of additional
evidence. The trial court held a hearing in camera on the
issue of whether this evidence had been reasonably available
to the defendant at the time of the preliminary hearing.

At the hearing in camera, the defendant asserted that until
the preliminary hearing, he was unaware that two of the
agents who were present at the execution of the warrant had
engaged in conduct relevant to his arguments about the
overbreadth of the search. The court had its doubts whether
the information concerning the extent of the agents’
conduct was truly unavailable at the time of the preliminary
hearing, but it also stated that it did not believe the
conduct of these two agents was relevant to any theory of
overbreadth. As a result, it denied the motion to introduce
additional evidence.

Following the hearing in camera, the court prepared to set
the matter for trial. The prosecutor reminded the court
that it needed to rule on the renewed motion to suppress,
limited to the record at the preliminary hearing.[fn2] The
court then stated, “It’s denied,” before returning to the
matter of setting a trial date. Neither defense counsel nor
the defendant (who had been granted cocounsel status)
raised any objection to the manner in which the court
disposed of the motion before the parties adjourned for the
day shortly thereafter.


As the superior court decided the renewed motion to
suppress on the record of the preliminary hearing, we
disregard its ruling and review the issue independently,
resolving express or implied factual conflicts in favor of
the magistrate’s ruling. (People v. Nonnette (1990) 221
Cal.App.3d 659, 664.)

A federal firearms official went to the defendant’s home to
perform a compliance inspection in connection with the
defendant’s federal license for importing weapons. Her
supervisor had assigned her the case after determining that
the defendant was not on a state list of authorized firearm
dealers, which he obtained from time to time for purposes
of cross-checking federal licensees. This triggered an
interest in determining whether the defendant was
conducting any operations that would require compliance
with state law. In the course of her review of his records
and about 21 firearms, she found several that came within
California’s ban against assault weapons (although they were
proper under federal law). When she questioned him about
them, he invoked “the Supremacy Clause.” (U.S. Const., art.
VI, § 2 [“the laws of the United States . . . shall
be the supreme law of the land, . . . any thing in the . .
. laws of any state to the contrary notwithstanding”].)
Pursuant to a policy of her department, she reported her
observations of possible violations of state law to
California firearms officials, even though there had not
been any request from them for this information. She also
notified the local officials of Angels Camp that the
defendant might be operating a business without a business

The California authorities determined that the defendant
was not a registered firearms dealer under California law,
nor had he taken advantage of a “grandfathering”
registration program for otherwise-illegal assault weapons
possessed before the state ban went into effect. On this
basis, they obtained a search warrant for the defendant’s
car dealership and the outbuilding at his residence. On the
first floor of the outbuilding were a storage area and his
living quarters with a bedroom. Under the bed and in a
wooden footlocker were three submachine guns; seven other
illegal assault weapons were in the storage area. These
were the weapons that were the basis for the charges
against the defendant. The agents also seized every other
firearm they encountered, some of which were lawfully

II. Fifth Amendment Claim Regarding Records and Inspection

The defendant contends that including in the affidavit for
the search warrant information from records his federal
firearms license required him to keep and from an
inspection he was required to submit to under federal
firearm laws was a violation of his privilege against
self-incrimination. He relies on Haynes v. United States
(1968) 390 U.S. 85 [19 L.Ed.2d 923] (Haynes); Lauchli v.
United States (7th Cir. 1973) 481 F.2d 408 (Lauchli II);
and Lauchli v. United States (7th Cir. 1970) 432 F.2d 1207
(Lauchli I), judg. vacated and cause remanded (1971) 402
U.S. 938 [29 L.Ed.2d 106], opn. following remand Lauchli II,
supra, 481 F.2d 408). Defendant is mistaken.

“[T]here is some possibility of prosecution — often
a very real one — for criminal offenses disclosed by
or deriving from the information that the law compels a
person to supply. . . . But under our holdings[,] the mere
possibility of incrimination is insufficient to defeat the
strong policies in favor of a disclosure called for by
statutes like the one challenged here [that requires those
involved in an accident to provide a name and address].”
(California v. Byers (1971) 402 U.S. 424, 428 [29 L.Ed.2d
9].) As summarized in Byers, the cases in which the United
States Supreme Court has found the privilege against
self-incrimination to bar prosecution[fn3] involve statutes
targeting a “‘highly selective group'” that is “‘inherently
suspect of criminal activities,'” and the focus of the
required disclosure is subject matter “‘permeated with
criminal statutes'” rather than “‘an essentially
noncriminal and regulatory area of inquiry.'” (Id. at p.
430.) As neither driving nor involvement in an accident are
unlawful, the required disclosures did not pose a
substantial risk of self-incrimination. (Id. at p. 431;
accord, Shapiro v. United States (1948) 335 U.S. 1, 3-5,
32-33 [92 L.Ed. 1787] [proper to prosecute violation of
price controls based on sales records that defendant
required to keep under law; any privilege in private papers
against self-incrimination does not apply to “public”
records kept as required by law for the purpose of
collecting information on transactions that are proper
subject of government regulation]; United States v.
Sullivan (1927) 274 U.S. 259, 263 [71 L.Ed 1037] [no
privilege involved in fulfilling generally aimed obligation
to provide information in a tax return].)

Haynes involved a requirement for “persons who have
obtained possession of a firearm without complying with the
Act’s other requirements” (Haynes, supra, 390 U.S. at p.
96) to register the firearm with the Secretary of the
Treasury (pursuant to a scheme for the taxation of “weapons
used principally by persons engaged in unlawful activities”
(id. at pp. 87, 88))[fn4] or face criminal prosecution.
(Id. at p. 89.) As this registration obligation is aimed at
persons “immediately threatened by criminal prosecutions”
should they comply (id. at p. 96), such that the
correlation between registration and a prosecution for the
underlying possession could be regarded only “as
exceedingly high” (id. at p. 97), the statutory scheme did
not come within the exception to the privilege against
self-incrimination for regulatory programs of general
application (id. at pp. 98-99); therefore, that privilege
provided “a full defense” (id. at p. 100).[fn5]

Applying these precedents, United States v. Resnick (5th
Cir. 1974) 488 F.2d 1165 concluded that “the record-keeping
provisions of the federal firearms laws” (in this case, the
Gun Control Act of 1968 (18 U.S.C. § 921 et seq.))
were not “directed at a highly selective group inherently
suspect of criminal acts” but instead “regulate[d] an
essentially noncriminal activity, the sale of firearms” and
therefore did not transgress the privilege against
self-incrimination. (Id. at p. 1168; accord, United States
v. Flores (9th Cir. 1985) 753 F.2d 1499, 1501-1503 (Flores)
[a provision requiring notice to carrier before shipping
firearms does not violate privilege against
self-incrimination]; United States v. Scherer (7th Cir.
1975) 523 F.2d 371, 375-376 [record obligations do not
automatically subject licensees to criminal penalties; thus
records are public documents not subject to privilege].)

Lauchli I, involving requirements in the National Firearms
Act other than registration, stated that determining
whether the petitioner came within the holding of Haynes is
“in a sense” a question of fact, and accordingly remanded
to the trial court to resolve the question. (432 F.2d at
pp. 1210-1211.) Lauchli II accepted the trial court’s
factual findings that manufacturers are not “almost
exclusively individuals inherently suspect of criminal
activities”; since the provisions at issue were directed
both “at law-abiding persons as well as criminally suspect
persons,” no risk was presented of automatic
self-incrimination. (481 F.2d at p. 411.) Lauchli II also
did not accept a claim that compliance with federal law
would make the petitioner subject to prosecution under
state law because the federal registry would be available
to state officials: “a Class I manufacturer [under the
federal law] could be in compliance with Illinois law
according to the type of weapon manufactured. . . . Thus
whether or not petitioner was violating Illinois law, he
would not be inherently suspect of such violation by
complying with the [federal act].” (Id. at p. 412.)

The defendant claims that the facts show an effort on the
part of federal firearm agents to uncover violations of
state firearms law when they inspect the firearms records
required under federal law. He therefore contends that he
is targeted for prosecution within the meaning of Haynes.
He also contends there must be an evidentiary hearing on
the extent to which those holding federal firearm importing
licenses are at risk of prosecution under state law, citing
Lauchli I.

To the contrary, the Gun Control Act of 1968 compels the
keeping of records of transactions that are the legitimate
(if disputed) subject of regulation, a requirement that
applies generally without inherently subjecting any
particular group to the risk of prosecution. As Lauchli II
points out in connection with the National Firearms Act,
nothing prevents persons subject to the records requirements
under federal law from complying with state law, and thus
they also could not be considered as targets of prosecution
under state law. Since the federal law does not itself
target recalcitrant state residents such as the defendant
who choose to violate state law, it is irrelevant that
federal officials use the records to determine if anyone in
the general population of federal license holders are in
possible violation of state law and report these potential
transgressors to state firearm authorities.[fn6] (481 F.2d
at p. 412; cf. Flores, supra, 753 F.2d at pp. 1501-1502
[while subject matter of firearms is permeated with
criminal statutes, notice requirement does not implicate
activity illegal per se and is aimed at public at large,
considerations which outweigh possibility that recipients
of notice might report illegal shipments to authorities].)

We also disagree with defendant’s contention that these
conclusions must be based on empiric evidence rather than
abstract analysis. We do not believe Lauchli I compels such
a conclusion, other than as an option that particular court
chose to exercise in resolving the issue of the interplay
of the statutes before it. Moreover, a decision of a lower
federal court does not have any binding force as precedent
(People v. Bradford (1997) 15 Cal.4th 1229, 1292
(Bradford)), and we are not persuaded that an evidentiary
hearing is a necessary procedure. (See Flores, supra, 753
F.2d at p. 1500 [whether notice requirement conflicts with
privilege against self-incrimination is a question of law
reviewed de novo].)

We conclude the search warrant properly incorporated facts
derived from the firearms records the defendant was
compelled to keep under federal law. As a result, the trial
court properly denied this ground of his renewed motion to

III. Federal Preemption

In conjunction with his renewed motion to suppress, the
defendant also moved in superior court to dismiss one of
the charges on the ground of federal preemption and a
violation of the Foreign Commerce clause (U.S. Const., art
I, § 8, cl. 3). The court denied the motion. The
defendant contends this was error.


The Gun Control Act of 1968 expressly eschews any intent to
preempt state regulation of firearms except in the case of
a direct and irreconcilable conflict (18 U.S.C. §
927), it being the intent of Congress only to strengthen
control over interstate and foreign commerce in firearms
and to assist intrastate control over them. (See Fresno
Rifle and Pistol Club, Inc. v. Van De Kamp (9th Cir. 1992)
965 F.2d 723, 726, fn. 4.) Regulations implementing the act
expressly state that a license issued pursuant to it does
not confer any right to conduct business or activity
contrary to state law.[fn7] (27 C.F.R. § 478.58
(2006).) The defendant consequently reaches for a more
attenuated basis for his preemption claim.

The President of the United States is authorized to
maintain a list regulating the import of designated arms,
ammunition, and implements of war. (22 U.S.C. §
2778.) This list (the U.S. Munitions Import List) and
regulations relating to it appear in part 447 of the Code of
Federal Regulations (27 C.F.R. (2006).) The regulations
provide that any items on the list which are firearms or
ammunition within the meaning of the Gun Control Act of
1968 are subject to the controls on interstate and foreign
commerce contained in that act and any person who imports
such items must be licensed pursuant to that act. (27
C.F.R. § 447.2(a) (2006).)

The defendant perceives an implied declaration of an intent
to occupy the field regulating items on the list, because
the regulations relating to the list do not include any
equivalent express declaration that they are not intended
to preempt state regulation. We find the reference to the
need to comply with the controls on commerce in the Gun
Control Act of 1968 to be a sufficient indicia of
congressional intent not to preempt state regulation over
items on the U.S. Munitions Import List if they are of a
type ordinarily coming within the former act. This would be
a rational means of avoiding a duplication of regulatory
effort. The defendant does not otherwise provide any
authority indicating a Presidential concern with state
encroachment on the power to regulate items on the U.S.
Munitions Import List after import. We therefore conclude
that prohibiting a resident from owning types of firearms
that can otherwise be lawfully imported does not transgress
federal authority, which instead condones stricter local


The defendant’s alternative argument is that a state ban on
types of legally imported firearms constitutes an
impermissible burden on foreign commerce. He cites a case
that invalidated a California tax on instrumentalities used
in foreign commerce that would have prevented the federal
government from maintaining uniformity in treatment of
international trade. (Japan Line, Ltd. v. County of Los
Angeles (1979) 441 U.S. 434, 453-454 [60 L.Ed.2d 336].)
However, he does not even begin to explain how the
principles limiting taxation of foreign commerce apply to
the present facts. In light of the inadequate argument, we
disregard the claim. (People v. Oates (2004) 32 Cal.4th
1048, 1068, fn. 10.) In any event, where Congress has
struck an express balance in its regulation of the
interests involved in interstate or foreign commerce, a
court no longer has any role in identifying possible
burdens. (Merrion v. Jicarilla Apache Tribe (1982) 455 U.S.
130, 154-155 [71 L.Ed.2d 21]; Japan Line, supra, 441 U.S.
at p. 454 [noting, in context of foreign commerce, that
courts must balance competing interests in absence of any
expression of congressional intent].) As with the issue of
preemption, the regulations implementing the U.S. Munitions
Import List indicate clear congressional intent to allow
any items that would come within the Gun Control Act of
1968 to be subject to the same commerce principles that
allow individual states to regulate them after import.
Presumably, once the list establishes the necessary uniform
voice in the treatment of munitions from around the world
(Japan Line, supra, 441 U.S. at p. 448), it is not of any
federal concern that a state declines to be a final
destination for them.


On several occasions, the defendant moved to dismiss the
charges against him on the basis of the federal statutory
use immunity added to the National Firearms Act. He
reasserts this proposition on appeal.

The National Firearms Act (26 U.S.C. § 5801 et seq.)
taxes and regulates (with various registration and other
requirements) the import, manufacture, making, and transfer
of machine guns, destructive devices, and certain other
firearms. (See 26 U.S.C. § 5845.) The chapter
contains a statutory use immunity from criminal prosecution
for information obtained “in order to comply with any
provision of this chapter [i.e., 26 U.S.C. §§
5801-5872]” (italics added). By contrast, the duty on the
defendant to maintain records and to permit warrantless
inspections of them stems from the Gun Control Act of
1968. (18 U.S.C. § 923(g)(1)(B)(ii).) The use
immunity provision of the National Firearms Act has no
application in this context, and the defendant does not
provide any authority for importing its provisions into an
entirely different act. The contention is consequently
without merit.

IV. Overbreadth

Under both the state and federal charters, a warrant must
particularly describe the place to be searched and the
items to be seized. (People v. Smith (1994) 21 Cal.App.4th
942, 948.) The scope of a warrant is sufficiently
particular where its language “imposes a meaningful
restriction upon the objects to be seized.” (Burrows v.
Superior Court (1974) 13 Cal.3d 238, 249.) A generic
description of the target of the search is permissible
where probable cause exists but it is impossible to be more
specific, or where the interpretive principle of ejusdem
generis[fn8] can apply. (People v. Hepner (1994) 21
Cal.App.4th 761, 778-779; People v. Schilling (1987) 188
Cal.App.3d 1021, 1031.) The conduct of officers executing a
search does not vitiate an otherwise lawful warrant; if
they exceed its scope, the remedy is exclusion of the items
illegally seized, not the totality of the fruits of the
search. (Bradford, supra, 15 Cal.4th at p. 1296.)[fn9] With
these principles in mind, we turn to the defendant’s two
arguments as they are articulated in his brief.[fn10]

1. Inclusion of a generic description: The list of items to
be sought begins with, “Any contraband and/or material
evidence such as,” followed by 11 categories. Nine of these
are specific weapons designated with serial numbers; the
10th includes “Any indicia to show active participation in
illegal importation and/or sales of such weapons, such as
but not limited to, bills of lading receipts”; and the 11th
includes “Any and all firearms[] not lawfully possessed . .
. and indicia to show identity of the persons involved and
show ownership and control of the premises[.]”

Although the defendant recognizes the principle of ejusdem
generis, he still insists the 11 categories following the
general phrase did not impose meaningful restrictions. This
argument flies in the face of nine specifically identified
weapons and two categories narrowed as far as can be
anticipated in advance. We therefore reject the claim.

2. The manner of execution resulted in a general search:

In the return to the warrant, the executing agents listed
about two dozen weapons seized in addition to the
specifically identified firearms. At the preliminary
hearing, the supervising agent explained the seizure of
these items: “We were researching the weapons to see if
they were lawfully possessed at the time. Some of them
didn’t have any history. Many of the handguns were not
registered to him. . . . We didn’t know if they were
lawfully possessed by him. They were not in his A & D book.
Some of the weapons that he had on him at the time of his
detention were not on his concealed weapons permit. So there
was a records check and a lawfully possessed . . . check
that we had to run” that required them to take all the
weapons with them. He also noted that there was a search of
two unlocked safes because they could have held illegal
handguns. One of his subordinates also noted that legal
firearms could provide indicia of ownership of other
firearms that were not registered. He could not always
recall why he seized a particular firearm, only that he was
following instructions in seizing them.

The defendant contends that the indiscriminate seizure of
all firearms found on the premises (together with the
testimony of the subordinate that he was not given any
instructions that meaningfully limited his quest for
firearms) converted the search into a constitutionally
impermissible general rummage through his premises.

These other firearms are not the basis for any of the
charges against the defendant. They were seized pursuant to
the authority of a warrant that could not in advance give
any further guidance as to what might be found, or to
distinguish between the weapons lawfully possessed and
those unlawfully possessed. The conduct in seizing other
weapons pursuant to the warrant that might have a bearing
on the offenses under investigation did not transmute the
process into a general search subjecting all the fruits of
the warrant to suppression. We therefore reject this claim
as well.

V. Inadequate Consideration of Renewed Motion

The defendant contends that the superior court denied the
renewed motion to suppress without a full review of the
record and without providing him adequate opportunity to
argue the motion.[fn11] Our plenary review of the issue
cures any possible prejudice even if we were to agree with
his claim. Therefore, we reject his assertion that he is
entitled to have the judgment reversed on this basis.

VI. Statements Made During the Search

During the course of the trial, the court held a hearing
out of the presence of the jury on the defendant’s motion
to suppress his responses to questions during the search of
his outbuilding. He contended this violated the dictates of
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]
(Miranda) because he did not received the advisements
required under Miranda. The parties focused the trial court
on the following facts.

Accompanied by the local police chief, the firearms agents
arrived at the defendant’s car dealership. The defendant
was drinking coffee. They went into his private office to
tell him that they had a search warrant for his person, his
place of business, and his residence. The defendant
indicated he was armed. The agents removed a loaded gun from
his front pants pocket and secured another gun in the
bookshelf behind him.

They gave him a copy of the warrant. He began to read
through its entirety, although the agents told him that he
could read it at the residence because they were concerned
that two employees of the dealership might notify someone
at the residence to dispose of evidence. They told him that
if he continued to delay their execution of the warrant,
this could be considered interference with the performance
of their duties under section 148. After perusing a copy of
the Penal Code that he kept handy, he said he was ready to
go with them. The agents would have been willing to proceed
in his absence, and did not compel him to go with them. He
rode in their vehicle without handcuffs.

During the course of the search, the police chief and a
couple of agents kept the defendant under observation as
they searched the second-floor office area. He sat at his
desk after they had secured the area. They had given him
the opportunity to leave, but he insisted on staying. They
did not place him under arrest at any time.

After a while, the defendant came downstairs to get a glass
of water from the living quarters, with an agent
accompanying him to make sure that he did not interfere. At
this point, an agent asked him a question about a machine
gun that they had found. The defendant made another
spontaneous comment, this time about the machine gun, before
returning upstairs.

The court denied the motion to suppress. It found that the
defendant had accompanied the agents to his home
voluntarily, and that he had been free to go at any point
during the search but instead chose to stay, in which case
he was properly restricted to a designated area.

The advisements required under Miranda must precede the
questioning of an individual only in “custodial”
circumstances, which include a formal arrest or an
equivalent deprivation of freedom of movement. (People v.
Ochoa (1998) 19 Cal.4th 353, 401.) This is assessed from the
perspective of the reasonable individual. (Id. at pp.

The authorities may detain an individual for investigation
without the need to comply with Miranda unless the person’s
freedom of action is curtailed to the degree associated
with a formal arrest. (Berkemer v. McCarty (1984) 468 U.S.
420, 439-441 [82 L.Ed.2d 317].) It is logical to apply this
principle by analogy to questioning of occupants detained
during the execution of a search warrant (as permitted
under Michigan v. Summers (1981) 452 U.S. 692, 705 [69
L.Ed.2d 340]).

The defendant contends he was the subject of significant
curtailment on his freedom of action. The facts do not
support his claim. He was free to stay at the dealership,
or to leave the outbuilding during the search at any time.
He claims that no one ever told him that he was free to
leave, but the trial court credited testimony to the
contrary and we are not entitled to overturn this
credibility determination. We therefore reject this

VII. Jury Instruction on the Firearm License

At the request of the prosecution and over the objection of
the defense, the trial court specially instructed the jury
in terms of the federal regulation we quoted above that a
federal firearm importer’s license does not permit the
holder to engage in any conduct contrary to state law. On
appeal, the defendant contends this was error, based on his
earlier arguments that he was not subject to state law. As
we have rejected his earlier arguments, we reject this
contention as well.

VIII. Jury Instruction on the Second Amendment

The defendant contends that the trial court erred in
denying his request for an instruction that he had an
individual right under the Second Amendment to the federal
Constitution to possess certain firearms. We disagree.

The trial court is required to instruct only on general
principles of law that are necessary to the jury’s
understanding of the case. (People v. Saille (1991) 54
Cal.3d 1103, 1120.) Instructions on specific points or
special theories that may be applicable to a defendant’s
particular case, referred to as “‘pinpoint'” instructions,
must be properly requested by the defendant. (Id. at p.
1119.) Defendant’s proposed jury instruction regarding his
Second Amendment right was a “pinpoint” instruction.

Section 1127 states that upon receiving a request for a
jury instruction by either party, “[i]f the court thinks
[the instruction] correct and pertinent, it must be given;
if not, it must be refused.” The trial court properly
refused defendant’s proposed instruction because the
instruction was neither correct nor pertinent.

The defendant requested the following instruction regarding
the Second Amendment right to keep and bear arms:

“The Second Amendment provides that every person may keep
firearms that could be used to contribute to the common

“The Second Amendment specifically provides `. . . the
right of the people to keep and bear arms shall not be

“A citizen has a Second Amendment right to keep arms that
could be classified as ordinary military equipment.

“Thus, if you find that the firearms offered as evidence in
this action would be classified as military style or
military firearms then the firearms offered in evidence are
not unlawful under the Second Amendment of the Constitution
of the United States.”

Defendant contends that the proffered jury instruction was
based on the United States Supreme Court’s decision in
United States v. Miller (1939) 307 U.S. 174 [83 L.Ed. 1206]
(Miller). However, defendant’s instruction mischaracterizes
the holding in Miller in two respects. The instruction
states that the Second Amendment right to keep and bear
arms is, first, an individual right and, second, an
absolute right. The instruction was properly refused
because neither statement accurately characterizes Miller’s
holding or the law.

In Miller, the Supreme Court rejected a Second Amendment
challenge to an indictment under federal law for the
allegedly unlawful interstate transportation of an
unregistered, short-barreled shotgun. (307 U.S. at pp.
175-178, 183.) The Miller court held that the Second
Amendment does not guarantee the right to keep and bear a
weapon that bears no “reasonable relationship to the
preservation or efficiency of a well[-]regulated militia.
(Id. at p. 178.) Miller concluded that the Second Amendment
must be interpreted and applied according to its purpose of
rendering effective the militia. (Ibid.) The Miller court
did not opine whether the Second Amendment right is an
individual or a collective right, and the Court has not
given further instruction on this question since Miller.

Defendant’s proposed instruction states that “[t]he Second
Amendment provides that every person may keep firearms that
could be used to contribute to the common defense” and that
“[a] citizen has a Second Amendment right to keep arms that
could be classified as ordinary military equipment.”
(Italics added.) Defendant’s instruction erroneously makes
no reference to the concept of a well-regulated militia,
which was central to the Supreme Court’s holding in Miller.

Defendant’s proposed instruction also reaches the incorrect
conclusion that every person’s right to keep and bear arms
is absolute so long as the arms can be classified as
military style or military firearms. To state such an
absurd right is to refute it. The proposed instruction
states that all weapons that can be classified as military
style or military arms are lawful under the Second
Amendment. Unsurprisingly, no court has held that the
Second Amendment right to keep and bear arms is absolute in
this way.

The United States Supreme Court has repeatedly upheld the
constitutionality of reasonable restrictions on the right to
keep and bear arms. For example, in Presser v. Illinois
(1886) 116 U.S. 252 [29 L.Ed. 615], the Court upheld an
Illinois statute prohibiting citizens, apart from organized
Illinois volunteer militia, from parading and drilling with
arms. In Robertson v. Baldwin (1897) 165 U.S. 275 [41 L.Ed.
715], the Court stated that the Bill of Rights are “subject
to certain well-recognized exceptions arising from the
necessities of the case” (id. at p. 281) “the right of the
people to keep and bear arms (article 2) is not infringed
by laws prohibiting the carrying of concealed weapons.”
(Id. at pp. 281-282.)

More recently, in Lewis v. United States (1980) 445 U.S.
55 [63 L.Ed.2d 198], the Supreme Court upheld a provision
of the Omnibus Crime Control and Safe Streets Act of 1968
prohibiting a felon from possessing a firearm. Although the
Court’s analysis centered on the Due Process Clause of the
Fifth Amendment, the Court, citing Miller, noted that
“[t]hese legislative restrictions on the use of firearms are
neither based upon constitutionally suspect criteria, nor
do they trench upon any constitutionally protected
liberties.” (Lewis, supra, 445 U.S. at p. 65, fn. 8.) The
Court also cited three federal circuit court decisions,
noting that all three had concluded that the provision at
issue did not violate the Second Amendment. (Ibid.)

After Miller, only the Fifth Circuit, in United States v.
Emerson (5th Cir. 2001) 270 F.3d 203 (Emerson), has adopted
the interpretation of the Second Amendment that the right
to keep and bear arms is an individual right. Even under
this interpretation, the Fifth Circuit has conceded that
the individual right remains subject to “any limited,
narrowly tailored specific exceptions or restrictions for
particular cases that are reasonable and not inconsistent
with the right of Americans generally to individually keep
and bear their private arms as historically understood in
this country.” (Emerson, supra, 270 F.3d at p. 261.)

In Emerson, the Fifth Circuit upheld an indictment charging
the defendant with violating the Gun Control Act of 1968
for possessing a firearm while subject to a restraining
order. (Emerson, supra, 270 F.3d at pp. 211-212, 265.) The
court concluded that the statute was a reasonable
restriction on an individual’s Second Amendment right. (Id.
at pp. 262-263.) The Fifth Circuit again upheld an arms
regulation statute in United States v. Everist (5th Cir.
2004) 368 F.3d 517, and held that a felon firearm
possession statute did not violate the Second Amendment
because the statute was “a limited and narrowly tailored
exception to the freedom to possess firearms.” (Everist,
supra, 368 F.3d at p. 519.) Thus, defendant’s proposed
instruction incorrectly concludes that the Second Amendment
right to keep and bear certain arms is an absolute right.

Although defendant contends that the proposed instruction
was based on Miller, we find that the instruction was an
improper characterization of Miller’s holding and the law.
The trial court properly denied the requested instruction.
( § 1127.)


The people’s motion for judicial notice is denied. The
judgment is affirmed.

We concur:



[fn1] Further undesignated section references are to the
Penal Code.

[fn2] This included transcripts from a preliminary hearing
in an earlier proceeding (Super.Ct. Calaveras County, No.
F2909) that had been dismissed pursuant to section 995.

[fn3] Marchetti v. United States (1968) 390 U.S. 39 [19
L.Ed.2d 889] (gambling tax and registration requirements);
Grosso v. United States (1968) 390 U.S. 62 [19 L.Ed.2d 906]
(same); Albertson v. Subversive Activities Control Bd.
(1965) 382 U.S. 70 [15 L.Ed.2d 165] (registration as member
of Communist organization).

[fn4] The act at issue was chapter 53 of title 26, United
States Code, popularly called the National Firearms Act.
(See 26 U.S.C. § 5849.)

[fn5] After subsequent amendment, the National Firearms Act
required only lawful possessors of the targeted weapons to
register and to record any transfer to another party; it
prohibited, however, the transferee from registering the
weapon, and made it unlawful to possess an unregistered
weapon. (United States v. Freed (1971) 401 U.S. 601,
603-604, 605 [28 L.Ed.2d 356].) The revised statute
prohibited the use of any information collected for
criminal proceedings involving a violation of federal or
state law that occurred before or concurrent with
registration or transfer. (Id. at pp. 604, 605-606.) This
eliminated any concerns about compelled self-incrimination.
(Id. at p. 606.)

[fn6] This would be the same circumstance as cooperative
efforts between the Internal Revenue Service (IRS) and the
Franchise Tax Board (FTB) to determine tax evasion from a
comparison of state and federal tax returns. (E.g., Rev. &
Tax. Code, § 19551 [allowing FTB to release tax
information to IRS].)

[fn7] The defendant’s license includes this caveat, stating
it “does not permit you to receive . . . firearms . . .
without first obtaining the proper state . . . license, if
any. Please check with your local authorities.”

[fn8] See Engelmann v. State Bd. of Education (1991) 2
Cal.App.4th 47, 56, fn. 11 (specific items accompanying
general phrase limit the understanding of the phrase).

[fn9] If there is “flagrant” police disregard of the limits
in a warrant on the items to be seized, total suppression
might be warranted. (Bradford, supra, 15 Cal.4th at p.
1306.) However, where the seizure is of items that “might
have . . . some bearing upon the current offenses” (id. at
p. 1306), such flagrant disregard is not established (id.
at p. 1307).

[fn10] The People apparently discern additional contentions,
but we disregard these as insufficiently identified and
argued under this heading. (Independent Roofing Contractors
v. California Apprenticeship Council (2003) 114 Cal.App.4th
1330, 1338, fn. 4.)

[fn11] The defendant had filed a writ in this court that
challenged both the failure to allow him to introduce
additional evidence and the denial of the renewed motion
(Wilmshurst v. Superior Court, C049073), which we summarily
denied. This disposition does not have any preclusive
effect on this appeal. (People v. Medina (1972) 6 Cal.3d
484, 492.) The defendant does not renew the former argument
in this appeal, however. Although the People have requested
us to take judicial notice of exhibits to the writ, they
are unnecessary for our resolution of the present appeal,
so we shall deny the motion.