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December 17, 2008

California court rejects Second Amendment attack on public firearm possession crime

A helpful reader sent me an e-mail altering me to a new decision dealing with a Heller-based Second Amendment claim in a Califorinia criminal case.  The ruling in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008) (available here) , starts this way:

Defendant was convicted following a jury trial of carrying a concealed firearm (Pen. ‎Code, § ‎‎12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, ‎‎§ 12031, subd. ‎‎(a)(1)).‎ ‎ He was sentenced to the middle term of two years in state prison ‎for the conviction of ‎carrying a loaded firearm in a public place, and sentence on the ‎remaining conviction was stayed. ‎‎

In this appeal defendant claims that his conviction of possession of a concealed ‎weapon ‎violates the Second Amendment to the United States Constitution, and the trial ‎court gave ‎erroneous instructions in response to jury questions on the charge of carrying a ‎loaded firearm in ‎a public place.  He also challenges the trial court’s sentencing decision ‎to deny probation and ‎impose a state prison term.  We conclude that the conviction of ‎possession of a concealed ‎weapon does not contravene defendant’s Second Amendment ‎rights as interpreted in the United ‎States Supreme Court’s decision in District of ‎Columbia v. Heller (2008) ___ U.S. ___ [171 ‎L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and ‎the court properly instructed the jury on carrying a ‎loaded firearm in a public place. We ‎also find that no prejudicial sentencing error occurred. We ‎therefore affirm the judgment.

I hope to get a chance to consume this opinion and comment on its particulars soon.

December 17, 2008 at 06:07 PM | Permalink


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Tracked on Dec 18, 2008 11:11:14 AM


There are several errors in the courts application of Heller. Particularly odd is the idea that a concealed revolver is a "dangerous and unusual weapon". Also the idea that a private driveway where people are gathering is a "sensitive place" under heller is absurd. While it may not receive the same protection as a home, sensitive places are things like schools and courthouses, not everywhere outside the home...

I don't know much about California's gun laws, is there any way in California that a law abbiding citizen could legally carry a concealed revolver?

Posted by: Monty | Dec 17, 2008 6:34:10 PM

I appreciate California court's suggestion. If the firearm is concealed then how someone allowed to carry it in public place.

Posted by: Firearms | Dec 29, 2008 5:56:27 AM

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