In their multi-count complaint, plaintiffs (including Colt's
Manufacturing Company) aim a constitutional attack at the Roberti-Roos
Assault Weapons Control Act of 1989 ("the Act"). (Stats. 1989, ch. 19,
sec. 3, p. 64 et seq.) In particular, plaintiffs focus on two statutes
enacted by the Act: Penal Code section 12276 and Penal Code section
12276.5.
     As pertinent, section 12276 sets out a list of assault weapons,
identified by brand and model (and sometimes by series) that are subject
to restriction by operation of other provisions of the Act. Section
12276.5 sets out procedures whereby additional assault weapons may be
added to the list of restricted weapons, ultimately by order of court.
     I concur with the majority opinion that the "add-on" provisions of
section 12276.5 are facially unconstitutional because they violate the
separation of powers doctrine and further violate principles of due
process of law.
     I also agree with the majority that the invalid provisions of
section 12276.5 are severable from the list of weapons set out in
section 12276, although I do not share the majority's grudging
acceptance of that conclusion. I think it logical that if additional
weapons could not be added to those set out in section 12276, the
Legislature would naturally want to be able to keep restrictions on
what it could, i.e., those weapons listed in section 12276.
     I respectfully dissent from the majority's conclusion that
plaintiffs have adequately pleaded that section 12276, and particularly
the list of assault weapons described therein, violates guarantees of
the equal protection of the laws.
     Plaintiffs' strongest equal protection claim is founded on the
assertion that the Legislature did not include on the section 12276 list
certain weapons that are identical to weapons on the list, except for
manufacturer.
     However, "the Legislature is not bound, in order to adopt a
constitutionally valid statute, to extend it to all cases that might
possibly be reached [citation], but is free to recognize degrees of harm
and make restrictions affecting those classes of cases wherein the need
is deemed to be clearest. [Citation.] The Legislature, in dealing with
practical exigencies, may be guided by experience and is at liberty to
select one phase of a problem for appropriate action without the
necessity of including all others that might be affected in the same
field of legislation. [Citations.]" (People v. Banner (1992) 3
Cal.App.4th 1315, 1322-1323.)
     "Wide discretion is vested in the Legislature in making the
classification and every presumption is in favor of the validity of the
statute; the decision of the Legislature as to what is a sufficient
distinction to warrant the classification will not be overthrown by the
courts unless it is palpably arbitrary and beyond rational doubt
erroneous." (Sacramento M. U. Dist. v. P.G. & E. Co. (1942) 20 Cal.2d
684, 693.)
     Here, a rational basis exists for the weapons listed in section
12276. That basis is found in an express legislative finding and
declaration set out in section 5 of the Act, as follows: "The
Legislature finds and declares that the weapons enumerated in Section
12276 of the Penal Code are particularly dangerous in the hands of
criminals and serve no necessary hunting or sporting purpose for honest
citizens . . . ." (Stats. 1989, ch. 19, sec. 5, pp. 69-70.) In short,
one reason the Legislature selected the guns listed in section 12276 is
that they are particularly dangerous in the hands of criminals. This is
plainly a rational distinction that permits the Legislature to outlaw,
as a first step, the most notorious weapons while excluding
functionally identical weapons made by other manufacturers that have
not achieved celebrity status among criminals.
     This finding cannot be defeated merely by alleging that the finding
is wrong. Rather, "Where there was evidence before the Legislature
reasonably supporting the classification, litigants may not procure
invalidation of the legislation merely by tendering evidence in court
that the Legislature was mistaken." (Minnesota v. Clover Leaf Creamery
Co. (1981) 449 U.S. 456, 464 [66 L.Ed.2d 659, 669], fn. omitted.)
     Here, in connection with the enactment of the Act, the Legislature
held extensive hearings, including a rare meeting of the Assembly as a
Committee of the Whole. In light of the evidence taken by the
Legislature, plaintiffs cannot show that the classification undertaken
by the Legislature is "palpably arbitrary and beyond rational doubt
erroneous." (Sacramento M. U. Dist. v. P. G. & E. Co., supra, 20 Cal.2d
at p. 693.)
     The trial court properly sustained defendant's demurrer to counts
1, 2, and 3 of the complaint, which allege plaintiffs' equal protection
challenge to section 12276.
     Plaintiffs have failed to challenge the trial court's ruling
sustaining the demurrer as to other counts (6, 7 and 16), and the trial
court's ruling is therefore presumed correct.
     In count 11, plaintiffs advance an equal protection challenge to
the "add on" provisions of section 12276.5. Since we declare these
provisions infirm on other grounds, suffice it to say I think this
count fails to state a cause of action.
     I would affirm the judgment insofar as it sustains defendant's
demurrer without leave to amend to counts 1, 2, 3, 6 7, 11 and 16.
     I would reverse the judgment insofar as it sustains the demurrer
without leave to amend to counts 4, 5, 8, 9, 10, 12, 13, 14 and 15.
                         SIMS, J.
     Further statutory references are to the Penal Code unless otherwise
indicated.
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