THE PEOPLE v. RAFAEL SOLIS MEZA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant, Rafael Solis Meza, appeals from a judgment after he pled no contest to a misdemeanor violation of carrying a loaded firearm.  (Pen.1 Code, § 12031, subd. (a)(1) As part of the plea agreement, an allegation the firearm was unregistered was stricken.   Defendant was placed on summary probation for three years and ordered to pay:  $100 restitution and probation revocation fines (§§ 1202.4, 1202.44);  a $40 court security fee (§ 1465.8);  and a $30 criminal conviction assessment.  (Gov.Code, § 70373, subd. (a)(1).)

On November 9, 2010, defendant was charged by a felony complaint with carrying a loaded handgun.   On November 18, 2010, defendant demurred to the complaint on, among other grounds, that section 12031, subdivision (a)(1) violated his right to bear arms under the Second and Fourth Amendments of the United States Constitution.   Defendant requested the trial court to dismiss the charge against him based on the Second Amendment as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570, 576–636.   On January 3, 2011, over the prosecution's objection, the trial court reduced the charge to a misdemeanor.

On February 23, 2011, defendant filed a motion to suppress pursuant to section 1538.5.   The trial court heard the motion on March 9, 2011.   Los Angeles Police Officer Alfonso Rojas, testified that he was working at around 9:30 p.m. on October 20, 2010.   The officers received a gang group disturbing the peace radio call.   Officer Rojas and a partner were driving to the place specified in the radio call when they saw defendant.   Defendant was standing with two other men.   As the officers approached, defendant and one of the other men began running in opposite directions.   Officer Rojas ran after defendant.   Officer Rojas told defendant to stop.   Defendant stopped for a moment and briefly placed his hands up.   Defendant then continued to run.   Officer Rojas saw defendant toss a large, dark-colored object over a residential fence into a backyard.   A short time later, Officer Rojas searched the backyard and saw a loaded gun lying on the ground.   About 20 or 30 minutes later, defendant was found in between bushes of a residential area.   The prosecution conceded the initial stop was initiated without probable cause.  (We express no opinion as to the correctness of the prosecutor's assertion.)   However, the trial court denied the motion to suppress on the basis that no evidence was obtained in the initial stop.

Defendant pled no contest on May 19, 2011.   The notice of appeal from the judgment cites the trial court's decisions overruling his demurrer and denying his motion to suppress.   The trial court issued a probable cause certificate as to whether defendant's right to bear arms under the Second Amendment was violated.

We appointed counsel to represent defendant on appeal.   After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   Instead, counsel requested this court independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.   On September 6, 2011, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wished us to consider.   On September 14, 2011, defendant filed a letter requesting:  removal of his appointed counsel;  appointment of a new attorney;  or an order directing briefing of the Second and Fourteenth Amendment issues.   On September 23, 2011, we denied defendant's request to relieve appointed counsel.

Defendant's letter asserts that District of Columbia v. Heller, supra, 554 U.S. at pages 576–636 and McDonald v. City of Chicago (2010) _ U.S. _, _ [130 S.Ct. 3020, 3026–3027] provide a basis for reversing the judgment because section 12031, subdivision (a)(1) violates the Second and Fourteenth Amendments.   This contention is meritless.  (See People v. Flores (2008) 169 Cal.App.4th 568, 574 [§ 12031, subd. (a)(1) carrying a loaded firearm in public, § 12021, subd. (c)(1) prohibiting possession of a firearm by certain persons and § 12025, subd. (a)(2) precluding carrying a concealed weapon];  see also People v. Ellison (2011) 196 Cal.App.4th 1342, 1346–1351 [§ 12025, subd. (a)(1) prohibiting carrying a concealed weapon within a vehicle];  People v. Delacy (2011) 192 Cal.App.4th 1481, 1487–1493 [§ 12021, subd. (c)(1) prohibiting possession of firearms by persons convicted of certain misdemeanors];  People v. Yarbrough (2008) 169 Cal.App.4th 303, 311–314 [§ 12025, subd. (a)(2) ].)   All of defendant's pro se requests are denied.   We have examined the entire record and are satisfied appointed appellate counsel has fully complied with his responsibilities.   No argument exists favorable to defendant.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284;  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende, supra, 25 Cal.3d at p. 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

ARMSTRONG, J. MOSK, J.