Modification: In re D.L.

In re D.L., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

D.L.,

Defendant and Appellant.

No. A164432

(San Francisco County Super. Ct. No. JW186213)

California Court of Appeal

First Appellate District

Division Two

Filed July 31, 2023

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Ellen L. Chaitin

Attorneys for Defendant and Appellant: By appointment of the Court of Appeal under the First District Appellate Project Avatar Legal, PC Cynthia M. Jones

Attorneys for Plaintiff and Respondent: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bridget Billeter, Deputy Attorney General, Masha A. Dabiza, Deputy Attorney General

THE COURT:

It is ordered that the opinion filed herein on July 3, 2023, be modified as follows:

1. On page 3, last sentence of the first full paragraph, delete the extra section sign within parentheses so the sentence reads:

The petition further alleged personal intentional discharge of a firearm (§ 12022.53, subds. (c)(d) and use of a firearm (§ 12022.5, subd. (a)).

2. On page 3, in the second full paragraph, in the sentence that ends with the phrase "when he was shot," the phrase is modified to read:

when multiple assailants, including D.L., opened fire on the gathering.

3. On page 9, fifth line from the bottom of the page, insert a period after "p. 2156": (Id. at p. 2156.)

4. On page 13, line 3 of footnote 6, the word "track" is changed to "check" so that the quoted portion of the sentence reads:

"fingerprinting, background check, a mental health records check, and training in firearms handling,"

5. On page 29, delete the paragraph break before the sentence "We agree with Alexander and Odell . . . ."

6. On page 29, after the citation "Bruen, supra, 142 S.Ct. at pp. 2157-2158 (conc. Opn. of Alito, J.).)," add the following two paragraphs:

In a petition seeking rehearing, D.L. presents an entirely new argument that, even if the "good cause" condition can be severed, sections 26150 and 26155 are still unconstitutional under Bruen because (1) they afford unfettered discretion to the relevant law enforcement official who "may issue" a license under each statute, and (2) the statutes still include a subjective condition that the applicant be of "good moral character."

We reject D.L.'s new argument for three reasons. First, D.L. forfeited his new argument. A petition for rehearing is not the place to raise any argument, let alone a constitutional challenge, for the first time. (See Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 551, citing Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092, abrogated on other grounds in Martinez v. Combs (2010) 49 Cal.4th 35, 62-66.) Second, D.L.'s argument is not supported by the actual holding in Bruen. As described above, that holding was based on the "proper cause" language in the New York statute, not on its use of the phrase "may issue." (Bruen, supra, 142 S.Ct. at pp. 2134, 2156 [applying new constitutional "standard to New York's proper-cause requirement" and holding "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms"].) Nor did Bruen include any holding regarding the "good moral character" condition. Third, D.L.'s new argument concerning the "may issue" language in sections 26150 and 26155 is an "as applied" constitutional challenge and not a facial challenge because the argument would not apply in all circumstances. (See discussion, ante, at pp. 14-16.) Rather, it would only apply where the sheriff or police chief refused to issue a license without articulating a reason for the rejection.

7. On Page 29, modify the phrase "Finally, the remaining . . . ." to read:

In conclusion, the remaining

There is no change in the judgment.

The petition for rehearing, filed July 18, 2023, is denied.

Stewart, P.J.