Filed 10/9/18 P. v. Bingham CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Joshua Bingham appeals his convictions for two counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); counts one and two),[1] two counts of possession of a firearm by a prohibited misdemeanant (§ 29805, subd. (a)(1); counts four and five), and possession of drug paraphernalia (Health & Saf. Code, § 11364; count six). The evidence against Bingham was seized pursuant to a search warrant based on information furnished by confidential informants and police surveillance of a known narcotics dealer. Bingham contends the trial court committed prejudicial error by denying his motion to unseal, quash, and traverse the search warrant, and by failing to suppress evidence seized pursuant to the warrant. In the alternative, Bingham contends his felon in possession of a firearm convictions must be reversed on equal protection grounds. We affirm.

1. Factual and Procedural Background

On April 20, 2016, Vacaville police executed a search warrant at Bingham’s home at Fruitvale Road, Vacaville. The warrant had been issued on April 11, 2016, based on Detective Michael Miller’s affidavit and authorized a search for drugs, firearms, and related items at five separate residences, including Bingham’s. The issuing magistrate ordered a portion of the affidavit sealed because it tended to reveal the identity of confidential informants.

The unsealed portion of Miller’s affidavit revealed Vacaville police officers had conducted a year-long investigation into Phillip Campbell’s distribution of illegal narcotics. Campbell was believed to be the primary local heroin dealer. Several confidential informants identified Campbell as having supplied them or others with marijuana, methamphetamine, heroin, and firearms. Confidential informants also indicated Campbell used “stash houses” to store narcotics and firearms. Campbell had a lengthy record of drug offenses and, in February 2016, was repeatedly observed selling narcotics in a convenience store parking lot.

On April 4, 2016, at approximately 11:00 p.m., officers interrupted a narcotics transaction at a trailer park. Campbell was arrested for possession of heroin and methamphetamine for sale. When detained, Campbell was found to have a simulated handgun, over 20 grams of black tar heroin, over 16 grams of methamphetamine, more than $2,300 in cash, packaging material, and a cell phone monitored by Vacaville police pursuant to a “ping warrant.”[2]

In the 24 hours preceding Campbell’s arrest, GPS records from his phone showed Campbell at Bingham’s residence five times. On April 3, 2016, at 10:45 p.m., Campbell arrived at Bingham’s residence and then, at 1:49 a.m. on April 4, departed for the same location where Campbell had previously conducted a February 2016 narcotics transaction. Campbell returned to Bingham’s residence at 2:08 a.m., before leaving again at 3:48 a.m. for the trailer park where he was later arrested, and then arriving back at Bingham’s residence at 5:12 a.m. At 8:50 a.m., Campbell left and went to a storage unit location and then another residence at 9:27 a.m. Campbell returned to Bingham’s residence at 12:28 p.m. At 2:30 p.m., Campbell went to various parking lots, returned to the trailer park at 2:42 p.m., and then at 5:46 p.m. arrived at a location where a prior search warrant, executed five days earlier, had uncovered half an ounce of methamphetamine and a firearm. Campbell returned to Bingham’s residence at 7:45 p.m., before driving to another residence “associated with heavy drug traffic” at 8:01 p.m., and then arriving at the trailer park at 8:34 p.m.

Miller, who had extensive narcotic trafficking training and experience, opined that “[t]he back and forth travel to [Bingham’s] address after making other short-term trips indicates a ‘stash-house’ location” where Campbell likely stored contraband and other evidence of drug sales. Miller stated, “[t]his behavior is common for drug traffickers who meet customers away from their storage areas and want to keep their activity random and hidden. This is also consistent with information from several [confidential informants] that Campbell utilizes ‘stash houses.’ ” Miller also identified Bingham as “a known drug user and suspected drug dealer.” A confidential informant had informed another Vacaville police detective that Bingham obtained his narcotics from Campbell. Campbell’s car was seen parked in front of Bingham’s home within the previous 30 days.

Bingham was arrested and prosecuted after officers found a methamphetamine pipe, as well as a 20-gauge shotgun and a .22-caliber rifle, inside his home. Prior to trial, Bingham moved to suppress the evidence obtained via the underlying search warrant. (See § 1538.5.) Bingham contended there was an insufficient nexus between Campbell’s narcotic sales and Bingham’s home and, therefore, the warrant was unsupported by probable cause. Bingham also asked the trial court to review the sealed portion of the affidavit in camera, determine if it was appropriately sealed, and publicly disclose all portions that did not reveal the identity of a confidential informant.

The People opposed both motions. The prosecutor conceded the court should first hold an in camera hearing to determine whether the warrant was properly sealed, but argued an informant’s statement “[Bingham] supplied drugs to [Campbell],” combined with the presence of Campbell’s phone and car at Bingham’s home, was sufficient to raise a fair probability Bingham’s home was being used as a “stash house” and contraband or evidence of a crime would be present. In the alternative, the People argued the motion to quash should be denied under the good faith exception to the exclusionary rule.

The trial court reviewed the entirety of both affidavits and took testimony from Miller and Yetter during two in camera hearings. The hearing transcripts were sealed. At the conclusion of the latter hearing, the trial court denied Bingham’s motions in open court, finding the sealed portions of both affidavits were properly sealed and probable cause supported issuance of the warrants. With respect to the warrant authorizing the search of Bingham’s residence, the court explained: “I wouldn’t unseal [the sealed portion of Miller’s affidavit.] . . . I find that it endangers the [confidential informants]. And it was properly sealed. There wasn’t anything there that didn’t need to be sealed. I wouldn’t allow you to reverse [sic] it either. And your motion to quash is further denied. [¶] Again, the police were operating in good faith, if nothing else.”

After a jury trial, Bingham was acquitted on count three (felon in possession of ammunition) but convicted of all other charges. The trial court suspended imposition of sentence and placed Bingham on probation, subject to various terms and conditions. Bingham filed a timely notice of appeal.

II. Discussion

Bingham contends the trial court erred in denying his motion to quash the residential warrant because Miller’s affidavit failed to establish a sufficient nexus between Campbell and Bingham’s home. Bingham asks us to review the sealed portions of both search warrant affidavits to determine if they were properly sealed and whether the residential search warrant was supported by probable cause.[3] Bingham also contends his convictions on counts one and two must be reversed because section 1170.18, subdivision (k) violates equal protection and infringes on his “fundamental right to bear arms.”

A. Challenges to Search Warrant

The People do not object to our independent review of the sealed affidavits and in camera proceedings but contend the warrant was supported by probable cause or, at the very least, the good faith exception to the exclusionary rule applies. “ ‘[A] search warrant designating more than one person or place to be searched, must contain sufficient probable cause to justify its issuance as to each person or place named therein.’ ” (People v. Nadell (1972) 23 Cal.App.3d 746, 752.) The test for determining whether an affidavit establishes probable cause for the issuance of a search warrant is a “totality-of-the-circumstances analysis.” (Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates).) “The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. ([Id. at pp.] 238–239; People v. Camarella (1991) 54 Cal.3d 592, 600–601.) ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1040–1041.)

When an affidavit consists in part of an informant’s tip to the police, the informant’s veracity, reliability, and basis of knowledge are relevant considerations in the totality-of-the-circumstances test, but no single factor is determinative. (Gates, supra, 462 U.S. at p. 233.) “[A] deficiency in one [of these elements] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some indicia of reliability.” (Ibid.) Indicia of reliability include prior accurate reports by the informant, a lack of ulterior motives in making the report, explicit and detailed description of the alleged wrongdoing, the informant’s first-hand observation of the alleged wrongdoing, and corroboration by independent police work. (Id. at pp. 233–234, 241.) “The focus . . . is on the ‘overall reliability’ of the informant’s tip.” (People v. Spencer (2018) 5 Cal.5th 642, 665.)

“The magistrate’s determination of probable cause is entitled to deferential review.” (People v. Kraft, supra, 23 Cal.4th at p. 1041; accord, Gates, supra, 462 U.S. at p. 236.) “ ‘[T]he warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in [Gates,] at page 238] to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.” (People v. Thuss (2003) 107 Cal.App.4th 221, 235.) Moreover, “ ‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ [Citation.] This reflects both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.” (Gates, at p. 237, fn. 10.)

The government is privileged to refuse to disclose the identity of a confidential informant. (Evid. Code, § 1041; People v. Hobbs (1994) 7 Cal.4th 948, 960 (Hobbs).) Evidence Code section 1042, subdivision (b), codifies the common law rule that disclosure of an informant’s identity is not required to establish the legality of a search pursuant to a warrant. (Hobbs, at p. 961.) “The scope of the informant’s privilege embodied in [Evidence Code] sections 1041 and 1042 is further characterized by the well-established corollary rule that ‘if disclosure of the contents of [the informant’s] statement would tend to disclose the identity of the informer, the communication itself should come within the privilege.’ ” (Hobbs, at pp. 961–962.)

In Hobbs, supra, 7 Cal.4th 948, our Supreme Court determined a portion of a search warrant affidavit may be sealed, to protect the identity of a confidential informant, and when the trial court does so, an in camera review procedure should be used “to preserve the defendant’s right to challenge the warrant’s legality.” (Id. at p. 955; see id. at p. 972.) Hobbs prescribed specific procedures for a trial court to follow when presented with a motion challenging a search warrant supported by a sealed affidavit. (Id. at p. 972–973.) The court concluded: “Where . . . due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required under [People v.] Luttenberger [(1990)] 50 Cal.3d 1, to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant), certain procedures should be followed in order to strike a fair balance between the People’s right to assert the informant’s privilege and the defendant’s discovery rights. [¶] On a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing pursuant to the guidelines set forth in [Evidence Code] section 915, subdivision (b), and this court’s opinion in Luttenberger, supra, 50 Cal.3d at pages 20–24. It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant’s identity. [¶] The prosecutor may be present at the in camera hearing; defendant and his counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. (See [Evid. Code,] § 915, subd. (b).) Defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding.” (Hobbs, at pp. 971–973, fns. omitted.)

If, after the trial court’s review, significant portions of the affidavit remain sealed, the court’s second task is “to determine ‘whether, under the “totality of the circumstances” presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was “a fair probability” that contraband or evidence of a crime would be found in the place searched pursuant to the warrant’ (if the defendant has moved to quash the warrant) or ‘whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing’ (if the defendant has moved to traverse the warrant).” (People v. Galland (2008) 45 Cal.4th 354, 364.)

Acting on Bingham’s request, we ordered the record augmented to include all sealed materials, including the transcripts of in camera proceedings and the sealed portions of Miller’s and Yetter’s affidavits. We have fully reviewed the sealed and unsealed portions of the affidavits in support of both search warrants, along with the in camera hearing transcripts. After considering each issue Hobbs directs us to assess, we conclude the trial court did not err in denying Bingham’s motions to unseal and traverse the search warrant affidavit. We also find the totality of the circumstances presented in the search warrant affidavit established a fair probability that contraband or evidence of a crime would be found in Bingham’s residence.

1. Necessity of Sealing the Affidavit

First, we address the propriety of the trial court’s ruling on Bingham’s motion to unseal the sealed portions of the detectives’ affidavits. “It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause.” (Hobbs, supra, 7 Cal.4th at p. 959, italics omitted; see Evid. Code, §§ 1041, 1042 [codifying common law privilege].) A corollary rule prohibits the disclosure of an informant’s statements if they “ ‘would tend to disclose the identity of the informer.’ ” (Hobbs, at p. 962; accord, People v. Galland, supra, 45 Cal.4th at p. 364 [courts may order identifying details redacted or sealed].) Thus, the trial court should determine “whether the extent of the sealing is necessary to avoid revealing the informant’s identity.” (People v. Martinez (2005) 132 Cal.App.4th 233, 241.)

Our review of the sealed transcripts and sealed portions of the affidavits confirms the trial court properly concluded disclosure of any material information contained therein might lead to identification of the informants, which would endanger their safety. Therefore, we affirm the trial court’s decision to maintain those affidavit portions under seal.

2. Probable Cause to Issue Search Warrant

Next, we must assess whether “there is a reasonable probability the defendant would prevail on his motion to quash.” (Hobbs, supra, 7 Cal.4th at p. 975.) “If the court determines, based on its review of all the relevant materials, that the affidavit and related materials furnished probable cause for issuance of the warrant under [Gates], supra, 462 U.S. 213, the court should simply report this conclusion to the defendant and enter an order denying the motion to quash.” (Hobbs, at p. 975.)

Our review confirms the sealed and unsealed portions of the affidavits provided a substantial basis for the magistrate’s probable cause determination. Multiple independent informants told the police Campbell was using stash houses in connection with his drug sales. Another informant told police Bingham was also dealing drugs obtained from Campbell. Standing alone, this informant’s conclusory incrimination of Bingham would not be sufficient to establish probable cause. (Cf. Gates, supra, 462 U.S. at p. 239 [conclusory statements insufficient to support finding of probable cause].) However, the magistrate did not rely on the informant’s statements alone.

The unsealed portion of the affidavit showed independent police investigation corroborating suspicion Bingham and Campbell were coconspirators in drug trafficking. Specifically, in the 24 hours preceding Campbell’s arrest (when methamphetamine, heroin, and $2,300 in cash was found on his person), GPS records from Campbell’s phone showed Campbell had briefly visited Bingham’s residence five times, including in the late night or early morning hours, before and after going to other locations where narcotics transactions had taken place or where narcotics and firearms had been found. Miller opined that “[t]he back and forth travel to [Bingham’s] address after making other short-term trips indicates a ‘stash-house’ location” where Campbell likely stored contraband and other evidence of drug sales. An officer had also recently observed Campbell’s car parked in front of Bingham’s house. All of this information, taken together, could lead a magistrate to reasonably conclude evidence of drug dealing would likely be found at Bingham’s residence.

The authority Bingham cites does not compel a contrary conclusion. Bingham relies on cases holding probable cause does not exist to search a residence merely because cars or individuals known to be linked to drug dealing are observed at the residence. (See People v. Hernandez (1994) 30 Cal.App.4th 919, 921, 924 [suspect observed selling drugs on two occasions in two separate vehicles; following one transaction, suspect parked one vehicle behind residence to be searched; on another occasion, both vehicles were observed parked behind residence]; Alexander v. Superior Court (1973) 9 Cal.3d 387, 398 [suspected drug dealer visited apartment almost daily, staying 15 minutes to two hours during each visit].) The instant case is readily distinguishable from Alexander and Hernandez because Miller relied on pings from Campbell’s cell phone, not mere observation of a parked car, and because of the close temporal nexus between Campbell’s arrest, during an attempted drug sale at the trailer park, and Campbell’s five visits to Bingham’s residence.

The facts presented here are more analogous to those at issue in People v. Romero (1996) 43 Cal.App.4th 440 (Romero). In Romero, an undercover agent called a dealer to purchase drugs. The dealer said he would check with his sources. The dealer then promptly left his home, drove to and entered a tavern, left the tavern three minutes later, drove to and entered the defendant’s mobilehome, left defendant’s residence three minutes later, and drove back to the dealer’s home. (Id. at pp. 443–444.) The dealer called the agent and said he checked with his sources but could not supply drugs at that time. On another occasion, the dealer arranged to sell drugs to the agent, and he stopped by the defendant’s mobilehome on his way to the prearranged site of the sale. (Id. at p. 444.) In analyzing whether the good faith exception to the probable cause requirement applied, the court found “the temporal sequence” permitted “the reasonable inference [the] defendant’s residence was a source of supply for the drug dealer,” and the searching officers relied on the affidavit in good faith. (Id. at p. 447.) Romero held a close temporal nexus between known drug transactions and a visit to the defendant’s residence was a significant indicator of probable cause. (Ibid.)

Here, on April 3rd and 4th, Campbell repeatedly returned to Bingham’s residence at all hours of the day and night both before and after making suspicious trips to other locations linked to Campbell’s drug dealing. Most importantly, Campbell was at Bingham’s residence within hours of being found at the trailer park with a simulated handgun, over 20 grams of black tar heroin, over 16 grams of methamphetamine, over $2,300 in cash, and packaging material. We do not read the affidavit as merely suggesting Bingham was a drug user who merely received five innocent social visits from Campbell during this 24-hour period. As the People put it, “Campbell’s movement patterns, his possession of narcotics and a large sum of cash immediately after multiple comings and goings from [Bingham’s] residence, were all consistent with the information offered by the informants and with the detective affiant’s experience that when drug traffickers are using stash houses, they often go back and forth between several addresses making short term stops in between, frequently in parking lots, and at all hours of the night.” This temporal sequence, together with evidence Campbell was operating stash houses in multiple locations, provided a basis for concluding evidence of drug dealing would be found at Bingham’s residence.

Even if we were to find the affidavit was insufficient to support issuance of the warrant to search Bingham’s residence, we cannot say it was “ ‘so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.’ ” (United States v. Leon (1984) 468 U.S. 897, 923; accord, People v. Camarella, supra, 54 Cal.3d at pp. 605–606.) Therefore, on this record, the good faith exception to the exclusionary rule would apply. The trial court did not err in denying Bingham’s motion to quash.

3. Material Misrepresentations

We next determine if Bingham made any allegations of material misrepresentations or omissions supported by the search warrant affidavit, including any testimony offered at the in camera hearing. (See Hobbs, supra, 7 Cal.4th at p. 974.) “[T]o prevail on a motion to traverse, the defendant must show: (1) the affidavit contained ‘a false statement made “knowingly and intentionally, or with reckless disregard for the truth;” and (2) “the allegedly false statement is necessary to the finding of probable cause.” ’ ” (People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7; accord, Hobbs, at p. 974.) Search warrant affidavits are “presumed truthful.” (Hobbs, at p. 966.) When “all or a major portion of the search warrant affidavit has been sealed in order to preserve the confidentiality of the informant’s identity, a defendant cannot reasonably be expected to make even the ‘preliminary showing’ required for an in camera hearing under Luttenberger.” (Hobbs, at p. 972, fn. 6, italics omitted.) “[W]here the defendant has made a motion to traverse the warrant under such circumstances, the court should treat the matter as if the defendant has made the requisite preliminary showing” (ibid.) and “take it upon itself . . . to examine the affidavit for possible inconsistencies or insufficiencies.” (Id. at p. 973.) If the defendant’s claims of material misrepresentation are not supported, “the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse.” (Id. at p. 974.)

Bingham questions whether the trial court adequately examined the affidavit for possible inconsistencies or insufficiencies—i.e., by reviewing relevant police reports or other information bearing on the veracity and completeness of the affidavits’ factual representations. Specifically, he suggests the trial court did not take any steps to address defense counsel’s concerns regarding the veracity of the informant who claimed to know Campbell was Bingham’s supplier. He asserts, “[i]f the trial court confined its in camera examination to the four corners of the warrant affidavit, then the review was necessarily deficient under Hobbs because, even assuming the warrant’s ‘facial’ allegations supported probable cause, the court would have had no way of assessing whether those representations were tainted by falsehoods or material omissions.” Essentially, Bingham suggests the trial court must conduct its own traverse of the warrant, even in the absence of any challenge to the veracity of the information provided to the magistrate. There is no such requirement. (Hobbs, supra, 7 Cal.4th at p. 974 [where affidavit properly sealed and defendant moved to traverse the warrant, court should “determine whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit” (italics added)].)

Here, Bingham’s motion did not set forth even general allegations calling into question the public portions of the affidavit. Nevertheless, the in camera hearing explored the veracity and reliability of the relevant confidential informants. The totality of the circumstances did not indicate any hint of misrepresentation necessitating examination of additional evidence. Nothing in Hobbs mandates testimony from a confidential informant or examination of such items as police reports when, as in this case, they are unnecessary to evaluate the affidavit. (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277–1278; accord, Hobbs, supra, 7 Cal.4th at p. 973 [trial court “may, in its discretion, find it necessary and appropriate to call and question . . . the informant”].) Our review of the sealed portions of the affidavits discloses no basis to suspect either contains knowing or recklessly false representations material to the finding of probable cause.

The trial court, having reviewed the sealed affidavits and heard the affiants’ testimony, concluded the affidavits were properly sealed, there was no basis to traverse the warrant, and probable cause existed to support the warrant. Our independent review reveals no error in the trial court’s denial of Bingham’s motions.

B. Equal Protection and Second Amendment Challenges to Section 1170.18

“At the November 4, 2014, General Election, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reclassified as misdemeanors certain offenses that previously were felonies or ‘wobblers.’ It also added . . . section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors. Section 1170.18 allows those currently serving sentences for Proposition 47 eligible felony convictions to petition to have their sentences recalled and be ‘resentenced to a misdemeanor.’ (§ 1170.18, subd. (b).) It also allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions ‘designated as misdemeanors.’ (§ 1170.18, subd. (f).) Once an offense is resentenced or redesignated as a misdemeanor it ‘shall be considered a misdemeanor for all purposes.’ (§ 1170.18, subd. (k).)” (People v. Buycks (2018) 5 Cal.5th 857, 870–871, fns. omitted.) The statute, however, contains an exception: “[R]esentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k), italics added.)

Bingham contends his convictions on counts one and two must be reversed because the exception in section 1170.18, subdivision (k), which prohibits his gun ownership or possession even after having his prior convictions reduced to misdemeanors, violates equal protection and infringes on his Second Amendment right to bear arms.[4] It is undisputed Bingham’s status as a felon supporting counts one and two was predicated on a 2013 felony conviction for violating Health and Safety Code section 11350, and he was resentenced, in 2015, as a misdemeanant under Proposition 47. (§ 1170.18, subds. (a), (b), (f).) We agree with the People the establishment of a starting date for Proposition 47’s ameliorative provisions does not violate equal protection.

To establish an equal protection violation Bingham must show “ ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, italics omitted.) Different treatment of similarly situated groups withstands scrutiny if a statute “neither implicates a fundamental right nor operates to the singular disadvantage of a suspect class” and bears a rational relationship to a legitimate state purpose. (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073.) “[P]enal classifications will be upheld unless they are irrational.” (People v. McKee (2010) 47 Cal.4th 1172, 1204.)

Bingham contends the statutory exception treats two groups of similarly situated individuals differently because it applies only to defendants who, like him, were sentenced as felons before Proposition 47 went into effect and whose felony convictions were afterwards reduced to misdemeanors, but it does not apply to defendants sentenced as misdemeanants after the initiative’s effective date for offenses that were deemed felonies before that date. He argues strict scrutiny applies because section 1170.18, subdivision (k), involves his “fundamental right to bear arms.” The People disagree, asserting the rational basis test applies.

Contrary to his assertion, Bingham simply is not similarly situated to persons convicted of violating Health and Safety Code section 11350 after the effective date of Proposition 47. (See People v. Morales (2016) 63 Cal.4th 399, 408 [considering equal protection challenge to Proposition 47’s provision requiring resentenced misdemeanants be placed on one year of parole without reduction for excess custody credits].) The different treatment Bingham complains of under section 1170.18, subdivision (k), is a result of his original conviction for a crime that, before the passage of Proposition 47, “society had deemed a felony.” (Morales, at p. 408.)

Furthermore, we reject Bingham’s argument the right to bear arms under the Second Amendment necessitates a strict scrutiny analysis. The Second Amendment permits “ ‘presumptively lawful regulatory measures’ . . . , including ‘longstanding prohibitions on the possession of firearms by felons’ ” and logically also allows such prohibitions to extend to the possession of firearms by certain misdemeanants. (People v. Flores (2008) 169 Cal.App.4th 568, 574–575, quoting District of Columbia v. Heller (2008) 554 U.S. 570, 626–627, & fn. 26.) “Heller intended by this language to put certain recognized prohibitions outside the ambit of the Second Amendment right it had delineated.” (People v. Delacy, supra, 192 Cal.App.4th at p. 1491.) Thus, Bingham cannot claim interference with a “ ‘fundamental’ right that would invoke elevated scrutiny under the equal protection clause.” (Id. at p. 1495 [rational basis test applicable].)

Bingham asserts there is “no logical reason” to distinguish between offenders, like himself, whose felony convictions were reduced under section 1170.18 and those whose drug convictions, by virtue of having been convicted after November 5, 2014, “automatically became misdemeanors under the current law.” Bingham contends, “he is now a misdemeanant and, just like any misdemeanant convicted of violating [Health and Safety Code section] 11350 in its current form, [he] is entitled to enjoy all the benefits of being a misdemeanant, [including] the right not to be punished as a felon” under section 29800. “[T]he voters have given Proposition 47 some retroactive effect. Some persons originally sentenced as felons can receive the benefit of a favorable resentencing.” (People v. Morales, supra, 63 Cal.4th at p. 409, italics added.) But with respect to firearms possession, the voters apparently disagreed with Bingham and rationally concluded offenders like him should pay some price for the benefits of resentencing under Proposition 47. (See § 1170.18, subd. (k); Morales, at p. 409.) “Equal protection of the laws does not mean a person can claim the benefits of an ameliorative change in the law but refuse to accept the price.” (Morales, at p. 409.)

The law is not irrational simply because persons who committed their offenses before Proposition 47’s effective date but were convicted (of a misdemeanor) after Proposition 47’s effective date are not subject to the same firearm prohibition as Bingham. “ ‘A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends” ’ [citation], or ‘because it may be “to some extent both underinclusive and overinclusive.” ’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887.) “The right to equal protection of the law generally does not prevent the state from setting a starting point for a change in the law. ‘The Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.’ ” (People v. Lynch (2012) 209 Cal.App.4th 353, 359; accord, People v. Floyd (2003) 31 Cal.4th 179, 188.)

III. Disposition

The judgment is affirmed.

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BRUINIERS, J.

WE CONCUR:

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SIMONS, Acting P. J.

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NEEDHAM, J.

A150577