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The People v. Rick Charles Delacy

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE


February 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICK CHARLES DELACY, DEFENDANT AND APPELLANT.

(Napa County Super. Ct. Nos. CR142103, CR142660)

The opinion of the court was delivered by: Margulies, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendant Rick Charles Delacy was convicted of four counts of unlawful possession of firearms and one count of unlawful possession of ammunition. (Pen. Code,*fn2 §§ 12021, subd. (c)(1), 12316, subd. (b)(1).) He challenges the constitutionality of section 12021, subdivision (c)(1), which prohibits the possession of firearms by persons convicted of specified misdemeanors, contending it violates the Second Amendment right to bear arms and equal protection. He also argues his conviction under section 12316, subdivision (b)(1) must be reversed because the trial court declined to instruct the jury on a mistake of fact defense and failed to answer adequately a jury question as to the mental state element required for conviction. Finally, defendant claims certain fees and fines should be stricken from the trial court's sentencing minute order because the trial court did not orally impose them at the sentencing hearing. We affirm.

I. BACKGROUND

Defendant's crimes were charged in two informations, arising from two separate incidents. In case No. CR142103 (the firearm case), defendant was charged with four felony counts of unlawful firearm possession. (§ 12021, subd. (c)(1).) The amended information alleged defendant's possession of firearms was unlawful because he had been convicted within the past 10 years of misdemeanor battery under section 242, one of the misdemeanors enumerated in section 12021, subdivision (c)(1).*fn3

In case No. CR142660 (the ammunition case), defendant was charged with one felony count of unlawful possession of ammunition (§ 12316, subd. (b)(1))*fn4 and one count of receiving stolen property (§ 496, subd. (a)). The unlawful possession charge contained allegations that defendant's possession of ammunition was unlawful because of his prior conviction and that defendant was on bail or on his own recognizance in case No. CR142103, at the time of the offense.

The firearms and ammunition were discovered during two probation searches of defendant's home in April and October 2008. During the first search, officers found four firearms, including a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. When confronted, defendant told the officers, "There ain't nothing wrong with me having guns." Defendant later testified he possessed the guns for hunting. The second search uncovered shotgun shells in a camouflage bag in defendant's bedroom closet and in two storage tubs in the garage. Defendant told deputies the shells were for hunting.

Prior to trial in the firearm case, defendant moved to dismiss the information on the ground section 12021, subdivision (c)(1) violated the Second Amendment right to bear arms, as interpreted in the United States Supreme Court's decision in District of Columbia v. Heller (2008) 554 U.S. 570 [128 S.Ct. 2783] (Heller). The trial court denied the motion, relying on People v. Flores (2008) 169 Cal.App.4th 568 (Flores), in which the court rejected a post-Heller challenge to section 12021, subdivision (c)(1).

The two cases were tried separately, beginning with a jury trial in the ammunition case in January 2009. The jury found defendant guilty of unlawful possession of ammunition and found true the special allegation defendant committed the offense while on bail or on his own recognizance in case No. CR142103. He was acquitted of the receiving stolen property charge. In March 2009, after the parties waived jury trial in the firearm case, the court found defendant guilty on the four charges of unlawful firearm possession. At a consolidated sentencing hearing, imposition of sentence was suspended, and defendant was placed on three years' probation.

II. DISCUSSION A. Heller

Defendant renews his Second Amendment argument, contending section 12021, subdivision (c)(1) is unconstitutional under Heller.

The Second Amendment to the United States Constitution provides: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In Heller, the Supreme Court held the Second Amendment protects an individual right "to possess and carry weapons in case of confrontation," unconnected with service in a militia. (Heller, supra, 128 S.Ct. at p. 2797; see also pp. 2817-2818, 2821-2822.) The court struck down a District of Columbia law effectively banning the possession of handguns in the home. (Id. at pp. 2817-2819.)

More recently, in McDonald v. City of Chicago (2010) ____ U.S. ____ [130 S.Ct. 3020] (McDonald), the court held the Second Amendment right recognized in Heller is "fully applicable to the States." (Id. at p. 3026 (plur. opn. of Alito, J.); id. at pp. 3058, 3088 (conc. opn. of Thomas, J.).) A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is "fundamental" to the American "scheme of ordered liberty" and is therefore incorporated in the due process clause of the Fourteenth Amendment. (McDonald, at pp. 3036, 3050 (plur. opn. of Alito, J.).) In a concurring opinion, Justice Thomas agreed with the plurality's characterization of the Second Amendment right as "fundamental." (Id. at p. 3059 (conc. opn. of Thomas, J.).)

Although it struck down the District of Columbia handguns ban, Heller recognized and affirmed certain traditional limitations on the right to bear arms. As the court noted, the Second Amendment does not grant "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Heller, supra, 128 S.Ct. at p. 2816.) Heller identified an expressly nonexclusive list of "presumptively lawful regulatory measures," stating "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." (Id. at pp. 2816-2817 & fn. 26; accord, McDonald, supra, 130 S.Ct. at p. 3047 (plur. opn. of Alito, J.) [reiterating these categories of permissible firearm regulations].) In so doing, Heller recognized that some individuals, presumably including felons and the mentally ill, may be "disqualified" from exercising Second Amendment rights. (Heller, at pp. 2816-2817, 2822 ["Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home"].)

B. The Second Amendment Claim

The Flores court relied on Heller's express authorization of statutes disqualifying felons from exercising Second Amendment rights to uphold the constitutionality of section 12021, subdivision (c). Although recognizing the defendant in Flores had been convicted of a misdemeanor, rather than a felony, the court held, "We find this [distinction] unconvincing. If, as Heller emphasizes, the Second Amendment permits the government to proscribe the possession of a firearm by any felon (including nonviolent offenders), we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by 'means of force likely to produce great bodily injury.' [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses. [Citations.] Consequently, we do not read Heller to undermine the constitutionality of Flores's section 12031 [sic: 12021] conviction." (Flores, supra, 169 Cal.App.4th at p. 575.)

Defendant argues we should apply strict constitutional scrutiny to strike down section 12021, subdivision (c)(1), contrary to the approach of Flores.*fn5 In holding the District of Columbia handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." (Heller, supra, 128 S.Ct. at pp. 2817-2818, fn. omitted.) The court did, however, imply that some elevated level of scrutiny was appropriate by rejecting the "rational-basis" test as too lenient. As the court reasoned in a footnote, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." (Id. at pp. 2817-2818, fn. 27.)

For purposes of constitutional analysis under Heller, however, there is a significant difference between the D.C. handgun ban and Penal Code section 12021. The D.C. statute was one of general application that did not fit within the traditional regulations described by Heller as "presumptively lawful." (Heller, supra, 128 S.Ct. at pp. 2816-2817, fn. 26.) In contrast, as Flores held, section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction expressly listed by Heller as untouched by its holding. Relying on this reasoning, both California and federal decisions have upheld the type of "presumptively lawful" regulations identified in Heller, including prohibitions on firearm possession by certain "disqualified" persons, without applying constitutional scrutiny that balances the objectives of the statute against the means used to accomplish those ends. In United States v. Vongxay (9th Cir. 2010) 594 F.3d 1111 (Vongxay), for example, the court determined that because Heller held that prohibitions on possession of weapons by felons are presumptively lawful, "felons are categorically different from the individuals who have a fundamental right to bear arms." (Vongxay, at p. 1115, fn. omitted.) Accordingly, the court upheld the federal felon-in-possession statute (18 U.S.C. § 922(g)(1)), against Second Amendment challenge without applying means-end scrutiny. (Vongxay, at p. 1115.) Earlier federal decisions had used the same rationale in upholding felon- and misdemeanant-in-possession statutes, also without applying means-end scrutiny. (E.g., United States v. White (11th Cir. 2010) 593 F.3d 1199, 1205-1206; U.S. v. Rene E. (1st Cir. 2009) 583 F.3d 8, 12-16 [possession by minor]; In re United States (10th Cir. 2009) 578 F.3d 1195, 1200; U.S. v. McCane (10th Cir. 2009) 573 F.3d 1037, 1047; U.S. v. Anderson (5th Cir. 2009) 559 F.3d 348, 352.)

In People v. Yarbrough (2008) 169 Cal.App.4th 303, 312-314 (Yarbrough), this court rejected a Second Amendment challenge to the prohibition on carrying concealed firearms in section 12025, subdivision (a)(2), based on Heller's approval of certain traditional regulations. We stated: "Treating as criminal defendant's concealment of a firearm under his clothing on a residential driveway that was not closed off from the public and was populated with temporary occupants falls within the 'historical tradition' of prohibiting the carrying of dangerous weapons in publicly sensitive places." (Yarbrough, at p. 314.) This was also the implicit reasoning of Flores, which did not apply means-end scrutiny in upholding section 12021, subdivision (c)(1). (Flores, supra, 169 Cal.App.4th at pp. 574-576; see also People v. Villa (2009) 178 Cal.App.4th 443, 445-448; People v. James (2009) 174 Cal.App.4th 662, 674-677.)

The Third Circuit Court of Appeal analyzed the issue at more length in evaluating title 18 United States Code section 922(k), which prohibits the possession of weapons with obliterated serial numbers. (United States v. Marzzarella (3d Cir. 2010) 614 F.3d 85 (Marzzarella).) Analyzing Heller's intent in holding certain categories of statutes unaffected by the Second Amendment, Marzzarella noted there were two possible explanations. Heller could have meant that the categories are presumptively lawful either "because they regulate conduct outside the scope of the Second Amendment" or "because they pass muster under any standard of scrutiny." (Marzzarella, at p. 91.) Settling on the first alternative, the court concluded the "better reading" is "that these longstanding limitations are exceptions to the right to bear arms." (Ibid., fn. omitted.) Applying this reasoning, the court held, "The endorsement [in Heller] of prohibitions as opposed to regulations, whose validity would turn on the presence or absence of certain circumstances, suggests felons and the mentally ill are disqualified from exercising their Second Amendment rights." (Id. at pp. 91-92, fn. omitted.)*fn6

The lower appellate courts were therefore generally unanimous in rejecting the application of means-end scrutiny to statutes disqualifying felons and certain misdemeanants from weapons possession until an en banc decision of the Seventh Circuit Court of Appeal, United States v. Skoien (7th Cir. 2010) 614 F.3d 638 (Skoien) and, more recently, United States v. Chester (4th Cir., Dec. 30, 2010, No. 09-4084) __ F.3d __ [2010 U.S. App. Lexis 26508] (Chester), which follows Skoien. In Skoien, the court considered the constitutionality under Heller of title 18 United States Code, section 922(g)(9), a statute prohibiting persons convicted of misdemeanor domestic violence from possessing weapons, framing the question as "whether Congress is entitled to adopt categorical disqualifications [on weapons possession]." (Skoien, at p. 639.) The court rejected reliance on Heller's declaration of presumptive validity for longstanding prohibitions, holding this was "precautionary language," intended only to "warn readers not to treat Heller as containing broader holdings than the Court set out to establish." (Skoien, at p. 640.) Following its own analytical route (id. at pp. 641-643), Skoien concluded that it was possible for a "categorical limit on the possession of firearms" to be constitutional (id. at p. 641). On the basis of footnote 27 of Heller, however, the court held that a valid categorical limit must satisfy more than a rational basis test. (Skoien, at p. 641.) Applying what it characterized as "some form of strong showing ('intermediate scrutiny,' many opinions say)," the court upheld the statute after finding it "substantially related to an important governmental objective." (Id. at p. 641.)

We conclude the Skoien approach gives too little weight to the "presumptively lawful" language of Heller. While Skoien is certainly correct the court intended to make clear through this language that its decision was limited in scope, the court was also intent on making clear what those limits are. There is no ambiguity in the language; Heller states, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" or other types of traditional weapons regulation.*fn7 (Heller, supra, 128 S.Ct. at pp. 2816-2817, italics added.) As Marzzarella held, Heller intended by this language to put certain recognized prohibitions outside the ambit of the Second Amendment right it had delineated. (Marzzarella, supra, 614 F.3d at p. 91.) Emphasizing these limits, Marzzarella described the right outlined in Heller as "the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home." (Marzzarella, at p. 92, fn. omitted, italics added.) Stated otherwise, the right announced in Heller does not render invalid otherwise lawful statutes of the types enumerated. Further, because the court's enumeration of traditional regulations was expressly noted to be nonexclusive, other, similar prohibitions are unaffected as well, as Flores held.

The limitations of the Skoien approach were rapidly made clear by a subsequent decision of the same court. In United States v. Williams (7th Cir. 2010) 616 F.3d 685 (Williams), the court considered the constitutionality of the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)). Rather than relying on the safe harbor for laws banning possession by felons in Heller, the court applied the intermediate scrutiny analysis it had previously adopted in Skoien. (Williams, at pp. 692-693.) Although the statute readily survived a facial challenge under that standard, the court concluded Heller's reference to traditional regulations as only " 'presumptively lawful' " means such statutes are also subject to felon-by-felon "as applied" challenges. (Williams, at p. 693.) It therefore considered whether the defendant's prior felony was such as to justify a prohibition on his personal possession of firearms. While Williams upheld application of the statute because the defendant had been convicted of a "violent felony" (id. at p. 694), its approach raises the possibility that the federal felon-in-possession statute is invalid in the Seventh Circuit to the extent it prohibits persons convicted of nonviolent felonies from possessing weapons. (See Williams, at p. 693 ["we recognize that [18 U.S.C.] § 992(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent"].) The language of Heller gives no hint of such flexibility.

We do not agree that Heller intended to open felon-in-possession prohibitions and similar categorical weapons possession bans to constitutional means-end scrutiny. On the contrary, following virtually all other federal and California appellate courts, we read Heller's "presumptively lawful" language to do just the opposite. Accordingly, if section 12021, subdivision (c)(1) falls within the "presumptively lawful" regulations of Heller, as Flores held, it is immune from means-end scrutiny.

As discussed above, Flores found subdivision (c)(1) of section 12021 to be presumptively lawful under Heller because "we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by 'means of force likely to produce great bodily injury.' [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses." (Flores, supra, 169 Cal.App.4th at p. 575; see similarly In re United States, supra, 578 F.3d at p. 1200 [Heller categories also include those convicted of misdemeanor domestic violence because the conviction demonstrates a propensity for use of physical violence against others]; United States v. White, supra, 593 F.3d at p. 1206 [same].) Defendant distinguishes Flores, contending the portion of subdivision (c)(1) banning persons convicted of misdemeanor battery from possessing weapons is not within the Heller exemption because misdemeanor battery requires only a "simple touching" and "does not necessarily entail violence," in contrast to the predicate assault in Flores.*fn8 We disagree with the characterization of battery as a nonviolent offense. Battery is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) As the trial court noted in denying defendant's motion to dismiss, battery, like assault, "presents a threat to public safety." As Flores held, if the Second Amendment permits the government to prohibit all felons (including nonviolent offenders) from possessing firearms, there is no reason the government cannot also prohibit firearm possession by misdemeanants who have shown a propensity to commit violence against others.*fn9

Finally, contrary to defendant's argument, we do not find any inconsistency or irrationality in the California rule permitting a person who is generally prohibited from possessing a firearm to use one in self-defense. (See People v. King (1978) 22 Cal.3d 12, 24 (King).) As defendant acknowledges, the King rule does not permit such a disqualified person to possess a firearm in anticipation of using it one day in self-defense. (See People v. McClindon (1980) 114 Cal.App.3d 336, 339-340.) Instead, King only recognized "when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021." (King, at p. 24.) This limited exception to the general rule prohibiting firearm possession by persons convicted of certain crimes does not render section 12021, subdivision (c)(1) irrational or otherwise unconstitutional, nor does it bolster defendant's efforts to bring himself within the holding in Heller. As discussed above, Heller protects a right to keep and bear arms for self-defense in the home for persons who are not otherwise disqualified from possessing firearms. (See Heller, supra, 128 S.Ct. at pp. 2816-2817 & fn. 26, p. 2822.) Under section 12021, subdivision (c)(1), defendant is disqualified from exercising Second Amendment rights.

C. Equal Protection

Defendant next argues section 12021, subdivision (c)(1) violates equal protection because it prohibits firearm possession by persons convicted of the California misdemeanors specified in the statute, but not by persons convicted of similar offenses in other jurisdictions. In contrast to this subdivision, the provision of section 12021 barring firearm possession by convicted felons, subdivision (a)(1), applies to any person convicted of a felony "under the laws of the United States, the State of California, or any other state, government, or country . . . ." Defendant argues "[t]here is no reason to believe that persons convicted of the specified California misdemeanors are any more likely to commit anti-social acts with firearms than persons who have committed equivalent offenses out of state."

We note defendant did not raise an equal protection challenge in the trial court. His motion to dismiss the firearm charges raised only a Second Amendment challenge to section 12021, subdivision (c)(1). The Attorney General, however, does not argue defendant forfeited his equal protection argument. We conclude defendant did not forfeit this argument, and we will consider it on the merits, because "the issue is still one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts--a task that is suited to the role of an appellate court. [Citations.] We also confront the issue to avert any claim of inadequate assistance of counsel." (See Yarbrough, supra, 169 Cal.App.4th at pp. 310-311.)

"The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.] However, neither clause [of the United States or California Constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons. The necessary quantum of such reasons varies, depending on the nature of the classification." (In re Evans (1996) 49 Cal.App.4th 1263, 1270 (Evans).) "In considering whether state legislation violates the Equal Protection Clause . . . , we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin, [citation] and classifications affecting fundamental rights [citation], are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy." (Clark v. Jeter (1988) 486 U.S. 456, 461.) "[M]ost legislation challenged under the equal protection clause is evaluated merely for the existence of a 'rational basis' supporting its enactment. [Citations.] Under the latter analysis, the question is whether the classification bears a fair relationship to a legitimate public purpose." (Evans, at p. 1270; see similarly People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14.)

In the absence of a suspect class or a fundamental right, defendant's equal protection challenge to section 12021 would be evaluated under the rational basis test. In Evans, for example, the court considered an equal protection challenge to the provisions of section 12021, subdivision (c)(1) permitting certain individuals to seek relief from the statute's prohibition on firearm possession. (Evans, supra, 49 Cal.App.4th at pp. 1269-1274.) In holding the classification should be analyzed under the rational basis test, the Evans court explained strict scrutiny is inapplicable because "[t]he classification of misdemeanants does not involve a typically suspect classification such as race or sex" and "[t]he private right to bear arms is not a 'fundamental' right' " under the Second Amendment. (Evans, at p. 1270.)

The United States Supreme Court's recent Second Amendment jurisprudence has called into question the latter conclusion. Following its determination in Heller that the right to bear arms is a private right guaranteed by the Second Amendment (Heller, supra, 128 S.Ct. at p. 2797), the court held in McDonald that this right is "fundamental" for purposes of incorporation in the due process clause of the Fourteenth Amendment. (See McDonald, supra, 130 S.Ct. at pp. 3036, 3050 (plur. opn. of Alito, J.); see also id. at p. 3059 (conc. opn. of Thomas, J.).) Because section 12021, subdivision (c)(1) deprives certain misdemeanants of this right for a period of 10 years, it could be argued that the statute "affects" a fundamental right and, for that reason, is subject to strict scrutiny under traditional doctrine. (E.g., Clark v. Jeter, supra, 486 U.S. at p. 461.)

This issue was addressed recently by the Ninth Circuit in Vongxay, supra, 594 F.3d 1111, in which the defendant raised an equal protection challenge to the federal felon-in-possession statute. (Id. at p. 1118.) The court rejected the defendant's argument that strict scrutiny should apply, reasoning the statute did not affect a fundamental right because the defendant belonged to the class of persons who may be disqualified from exercising Second Amendment rights under Heller. As the Ninth Circuit explained: "[T]he Supreme Court has purposefully differentiated the right to bear arms generally from the more limited right held by felons. [Citation.] Therefore, whatever standard of review the Court implicitly applied to Heller's right to keep arms in his home is inapplicable to Vongxay, a felon who was explicitly excluded from Heller's holding." (Vongxay, at p. 1118.) The Vongxay court accordingly applied pre-Heller case law, specifically Lewis v. United States (1980) 445 U.S. 55, that had established rational basis as the standard of scrutiny for equal protection challenges relating to the right to bear arms. (Vongxay, at pp. 1118-1119; see similarly Warden v. Nickels (W.D.Wash. 2010) 697 F.Supp.2d 1221, 1226-1227 [applying rational basis test to equal protection claim regarding weapons possession].) We find the Vongxay analysis persuasive and follow it here. Because misdemeanants subject to section 12021, subdivision (c)(1) are disqualified to the same extent as felons from exercising Second Amendment rights (Flores, supra, 169 Cal.App.4th at p. 575), they can claim no "fundamental" right that would invoke elevated scrutiny under the equal protection clause. As a result, the statute is subject only to a rational basis analysis.

We find no basis for applying intermediate scrutiny under the authority of Skoien and Chester, the primary authorities cited by the dissent. As discussed above, Skoien rejected, wrongly in our view, any consideration of the presumption of lawfulness afforded certain traditional regulations by Heller. The dissent fails to mention Heller's singling out of certain traditional regulations as presumptively lawful, let alone to explain why section 12021, subdivision (c)(1) does not fall within those categories.*fn10 Yet even if we accept Skoien on its own terms, it would not require the application of intermediate scrutiny in the context of an equal protection challenge, as the dissent concludes. Skoien and Chester featured Second Amendment challenges to the federal weapons possession ban for persons convicted of misdemeanor domestic violence. The defendants in Skoien and Chester raised no claims under the Fifth or Fourteenth Amendments, which contain the guarantee of equal protection. Had equal protection claims been raised, these courts may well have applied a different level of scrutiny than they applied to the Second Amendment claims, since the respective claims arise under different constitutional provisions and are subject to different governing authority. In any event, because no equal protection claim was made in Skoien and Chester, these decisions provide no authority for applying elevated scrutiny to defendant's equal protection claim here.*fn11

Having settled the level of scrutiny, we turn to the substance of the argument. Under the rational basis test, the question is whether the Legislature's differing treatment of similarly situated groups bears a fair relationship to a legitimate public purpose. (See Evans, supra, 49 Cal.App.4th at p. 1270.) We find two separate rational bases for the failure of section 12021, subdivision (c)(1) to include out-of-state misdemeanants. Critical to both these justifications is the widely varying nature of misdemeanor crimes. It is no accident that section 12021 precludes all felons, regardless of the nature or jurisdiction of their felony, from possessing guns (id., subd. (a)(1)), but does not similarly preclude all misdemeanants. Instead, subdivision (c)(1) carefully enumerates the particular misdemeanors that disqualify a person from weapons possession. The Legislature has made a judgment that all crimes serious enough to be classified as felonies are serious enough to justify depriving persons committing those crimes of the right to bear arms. Conversely, the careful discrimination among misdemeanor crimes in subdivision (c)(1) reflects the Legislature's recognition that not all misdemeanors, which vary widely in substance and seriousness, suggest that the violator cannot responsibly possess weapons.

This diversity has two consequences. First, it raises the concern that other jurisdictions might not treat misdemeanor crimes, or at least some misdemeanor crimes, with the same level of due process afforded in California. California law restricts possession of firearms by persons convicted of the misdemeanors enumerated in section 12021, subdivision (c)(1) only after providing representation by counsel (see Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 527 [defendant charged with any misdemeanor has right to counsel under California Constitution]) and notice of the weapons restriction (§ 12021, subd. (d)(2)). Such protections, particularly the latter requirement, may not be afforded in other jurisdictions.*fn12

Second, the diversity makes identifying parallel misdemeanors in other states a daunting task. Enumerating the misdemeanors subject to the section 12021 ban for each state individually, as subdivision (c)(1) does for California, would be difficult, if not impossible, because it requires the careful parsing of the criminal codes of 49 other states. The Legislature cannot be required to scrutinize each state's laws to determine whether misdemeanors exist that are identical to the California misdemeanors listed in subdivision (c)(1). In theory, the Legislature could have identified general classes of out-of-state misdemeanors subject to the ban. By identifying individual misdemeanors in subdivision (c)(1), however, the Legislature has already indicated that listing general classes of misdemeanors is not a satisfactory approach. If that were sufficient, the Legislature could have listed general classes for California misdemeanors rather than specifically enumerating them. Further, even if the Legislature could identify general categories of out-of-state misdemeanors, the elements of the offenses may differ among the states, making it difficult for an offender to know whether a particular out-of-state misdemeanor is included in a category subject to the ban, and thereby raising issues of due process. (See U.S. v. Moore (7th Cir. 2008) 543 F.3d 891, 897.) In short, as a practical matter it would be difficult for the Legislature to extend section 12021, subdivision (c)(1) to misdemeanor crimes committed in other states in a fair and equitable manner.*fn13

Both of these concerns, the protection of a defendant's due process rights and the difficulty of crafting effective legislation, constitute legitimate governmental concerns that are sufficient to justify the Legislature's decision not to include out-of-state misdemeanants under section 12021. Accordingly, the statute does not deny defendant equal protection of the laws by excluding such persons.*fn14

In this connection, we note the United States Supreme Court has upheld federal firearm disability law sentencing enhancements despite recognizing they can result in different enhancements for similar circumstances, depending upon the state of the defendant's original conviction. In Logan v. United States (2007) 552 U.S. 23, the defendant argued his sentence enhancement under section 924(e)(1) of title 18 of the United States Code was invalid because his prior conviction would have been disregarded had he been convicted in certain other states. (Logan, at p. 26.) After reviewing the statutory history, the court upheld the enhancement, concluding Congress had a valid reason for structuring the statute in the manner it selected. (Id. at pp. 35-36.) In the same way, the different consequences from in-state and out-of-state misdemeanor convictions under section 12021, subdivision (c)(1) must be upheld because our Legislature could have had valid reasons for its legislative decision.

D. The Mistake of Fact Instruction

1. Background

Prior to the jury trial in the ammunition case, defendant submitted a proposed jury instruction on the defense of mistake of fact. Defendant argued he did not know it was unlawful for him to possess ammunition because the judge in his 2006 battery case told him he could continue to possess guns during hunting season.*fn15 The trial court declined to give the requested instruction. The court noted unlawful possession of ammunition under section 12316, subdivision (b)(1) is a general intent crime, which requires proof the defendant knew he possessed ammunition, but does not require proof the defendant knew it was illegal to possess ammunition.

During the jury trial, defendant testified he was an avid hunter and typically kept 1,000 rounds of ammunition on hand. Defendant testified he entered a plea of no contest to battery in 2006. He testified the firearms that were seized from his home in the April 2008 search were registered.

During defendant's direct testimony, the trial court, consistent with its pretrial ruling, sustained relevancy objections to questions about whether the probation order or the probation department in the battery case notified defendant he could not possess guns or ammunition.

2. Analysis

On appeal, defendant contends the trial court erred by refusing to give the mistake of fact instruction. Defendant claims he was entitled to the instruction because the judge in the battery case told him he could possess guns during hunting season, and because he received no notice he would be prohibited from possessing guns and ammunition for 10 years. We disagree.

We note initially defendant is incorrect in asserting the evidence in the jury trial in the ammunition case supports his argument he was told he could possess guns during hunting season. Defendant cites to his counsel's argument in the subsequent court trial in the firearm case, at which defendant testified he understood his plea in the battery case did not preclude him from possessing guns during hunting season.*fn16 As noted above, the trial court sustained relevancy objections to this line of questioning in the jury trial. There was no evidence supporting this argument in the jury trial.

In any event, defendant was not entitled to a mistake of fact instruction based on his alleged lack of notice of the 10-year prohibition on possession of firearms and ammunition resulting from his battery conviction. The relevant ammunition statute, section 12316, subdivision (b)(1), does not state notice of illegality is an element of the crime. The firearm statute, section 12021, provides the court shall, at the time a judgment of conviction of a felony or enumerated misdemeanor is imposed, give notice to the defendant of the prohibition on firearm possession resulting from the conviction; however, the statute expressly specifies "[f]ailure to provide the notice shall not be a defense to a violation of this section." (§ 12021, subd. (d)(2).) As a result of his battery conviction, defendant was prohibited under section 12021, subdivision (c)(1) from possessing firearms for 10 years, regardless of whether he received notice of the prohibition. (§ 12021, subds. (c)(1), (d)(2).) And, because he was "prohibited from owning or possessing a firearm under Section 12021," he was also prohibited from owning or possessing ammunition. (§ 12316, subd. (b)(1).)

Defendant's asserted lack of knowledge of the illegality of his possession of ammunition was a mistake of law, not a mistake of fact. " 'For criminal liability to attach to an action, the standard rule is that "there must exist a union, or joint operation of act and intent, or criminal negligence." ' [Citation.] Generally, the prosecution must prove some form of guilty mental state. [Citation.] A defendant may refute guilt by showing a mistake of fact disproving criminal intent. [Citation.] A person is usually considered incapable of committing a crime if he or she 'committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.' (Pen. Code, § 26.) . . . ' " ' "At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense." ' " ' [Citation.]" (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661.) "In determining whether a defendant's mistaken belief disproves criminal intent, the courts have drawn a distinction between mistakes of fact and mistakes of law. [Citation.] While a mistake of fact usually is a defense, a mistake of law usually is not. It is commonly said that ignorance of the law is no excuse. [Citation.]" (Ibid.)

In People v. Snyder (1982) 32 Cal.3d 590 (Snyder), the Supreme Court held a defendant's asserted mistake as to her legal status as a felon was a mistake of law, not a mistake of fact, and therefore provided no defense to a charge of being a felon in possession of a firearm. (Id. at pp. 592-593.) The Snyder court stated: "[L]ack of actual knowledge of the provisions of Penal Code section 12021 [the firearm statute] is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section." (Id. at p. 593.) Similarly, here, defendant's asserted mistake as to whether his misdemeanor battery conviction made it unlawful for him to possess guns or ammunition was a mistake of law, not a mistake of fact.

A mistake of law is not a defense to a general intent crime. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137.) As the trial court instructed, and as defendant concedes, possession of ammunition, the crime defined in section 12316, subdivision (b)(1), is a general intent crime; a general intent to commit the proscribed act is sufficient to sustain a conviction. (See Snyder, supra, 32 Cal.3d at p. 592 [possession of firearm under § 12021]; People v. Spirlin (2000) 81 Cal.App.4th 119, 130 [same]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (Jeffers) [same].) Accordingly, defendant's alleged mistake was not a defense to the charge of unlawful possession of ammunition under section 12316, subdivision (b)(1).

Finally, defendant argues he was entitled to a mistake of fact instruction based on People v. Bray (1975) 52 Cal.App.3d 494 (Bray), but that case is distinguishable. In Bray, the defendant entered a plea of guilty in Kansas to being an accessory after the fact and was placed on two years' summary probation, which he successfully completed. (Id. at p. 496.) The defendant subsequently sought to register to vote in California, stated he was uncertain whether he had been convicted of a felony, and filled out an explanatory form about the Kansas offense; he was permitted to vote. (Ibid.) The defendant later applied for a job as a security guard. On the application he stated he had not been convicted of a felony and explained the circumstances of his arrest and probation in Kansas. (Ibid.) The state Bureau of Collection and Investigative Services registered him as a guard. (Ibid.) On subsequent job applications he stated his uncertainty as to his status while explaining the circumstances of his arrest and probation. (Id. at p. 497.) After the defendant was convicted of being a felon in possession of a concealable firearm, the Court of Appeal held under these unusual circumstances the trial court had erred in refusing to instruct the jury on "mistake or ignorance of fact and knowledge of the facts which make the act unlawful," i.e., the defendant did not know his prior offense was a felony. (Id. at pp. 495, 499.)

The Bray court stated such instructions are not required every time a defendant claims he did not know he was a felon. (Bray, supra, 52 Cal.App.3d at p. 499.) The court emphasized the defendant had been "convicted in Kansas of what for California is an unusual crime," and "on more than one occasion had been led to believe by state regulatory agencies he was not a felon." (Ibid.) The court stated: "It is only in very unusual circumstances such as these that the giving of these instructions is necessary." (Ibid.) In Snyder, the Supreme Court distinguished Bray, noting the defendant in Snyder "made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status." (Snyder, supra, 32 Cal.3d at pp. 594-595.)

Here, in contrast to the defendant in Bray, who did not know and was unable to determine whether he had been convicted of a felony, defendant did not allege he had any misunderstanding as to the nature of his prior conviction. He did not claim he was unaware he had been convicted of misdemeanor battery, nor did he claim the judge in the battery case or anyone else misled him about that fact. Indeed, defendant testified in both the ammunition case and the firearm case about his battery conviction. Defendant also did not argue he obtained the ammunition after making a full disclosure of his battery conviction to governmental officials and receiving assurances the conviction did not prohibit him from possessing ammunition. Instead, defendant's only alleged misunderstanding was as to the statutorily mandated consequences of his battery conviction, i.e., defendant allegedly was unaware sections 12021, subdivision (c)(1) and 12316, subdivision (b)(1) prohibit (for 10 years) possession of firearms and ammunition by persons convicted of misdemeanor battery. This alleged misunderstanding was a mistake of law and provided no defense to the charges against defendant. (See Snyder, supra, 32 Cal.3d at pp. 592-593.)

E. The Jury's Question

1. Background

During the jury's deliberations in the ammunition case, the jury sent the following question to the court: "Is it a requirement of conviction in Count 1 [the ammunition charge] that [defendant] knew that it was a violation of his probation to possess ammunition?" After a discussion with counsel, the court sent a written response to the jury: "Knowledge that it is unlawful to possess ammunition is not an element of the crime charged in Count 1."

2. Analysis

Defendant contends the trial court's response to the jury's question was incomplete and inadequate. We disagree.

Without citation to the record, defendant continues to assert he was told by the judge in the battery case he could lawfully possess guns and ammunition despite his misdemeanor battery conviction (which, under the governing statutes, disqualified him from possessing guns and ammunition, see §§ 12021, subd. (c)(1), 12316, subd. (b)(1)). Defendant states: "[Defendant] was told by his first judge that he could lawfully possess guns and ammunition notwithstanding his misdemeanor battery conviction. As such, he had no knowledge his possession of the ammunition was unlawful. The trial judge should have so instructed the jury." However, as discussed above, there was no evidence on this point in the jury trial in the ammunition case. Defendant testified only about this issue in the subsequent court trial in the firearm case. The trial judge was not obligated to instruct the jury about the alleged significance of testimony defendant had not yet given.*fn17

Defendant also argues "a lack of knowledge of the contraband nature of the ammunition should be a defense." Defendant contends the court should have instructed the jury on this point and was required to "cite the jury to what the prosecutor had to prove and whether [defendant's] lack of intent to commit a crime undermined the offense charged." However, when counsel discussed with the trial court the appropriate response to the jury's question, defendant did not raise the argument a lack of knowledge of the contraband nature of the ammunition should be a defense. Instead, defense counsel stated only that defendant had not violated his probation.

In any event, the court's response was appropriate. The jury appears to have been confused about the relationship between the conditions of defendant's probation in the battery case and the elements of the ammunition charge. Defendant's probation status was not an element of the ammunition charge. The trial court responded by correctly instructing the jury that knowledge it is unlawful to possess ammunition was not an element of the crime charged; as discussed above, possession of ammunition under section 12316, subdivision (b)(1) is a general intent crime. (See Snyder, supra, 32 Cal.3d at p. 592 [possession of firearm]; People v. Spirlin, supra, 81 Cal.App.4th at p. 130 [same]; Jeffers, supra, 41 Cal.App.4th at p. 922 [same].) A general intent to commit the proscribed act, i.e., to possess ammunition, is sufficient. No specific intent is required. Accordingly, it was not necessary to prove defendant knew it was unlawful to possess ammunition.

The Jeffers case, on which defendant relies, does not support his argument. In Jeffers, the defendant was convicted of being a felon in possession of a firearm after he delivered a box wrapped in a paper bag to a gun store at the request of a friend. The defendant claimed he was not aware the box contained a gun. (Jeffers, supra, 41 Cal.App.4th at pp. 919-922.) The appellate court held the trial court erred by failing to instruct on general criminal intent and refusing to give the defendant's pinpoint instruction on his defense he had no knowledge he was in possession of a gun. (Id. at pp. 920-921, 922-925.) Because of the lack of a general intent instruction, "the jury reasonably could have believed the only issue to be decided was whether defendant had knowledge a gun was in the package even if that knowledge was not acquired until he arrived at the gun shop and even if possession was not intentional." (Id. at p. 924.)

Here, in contrast, the trial court did instruct the jury on general criminal intent.*fn18 (See People v. Padilla (2002) 98 Cal.App.4th 127, 135-136 [Jeffers was not controlling where trial court instructed on general criminal intent].) Moreover, in contrast to the facts in Jeffers, defendant did not claim he did not know he possessed, or did not intend to possess, the ammunition in his house.

F. The Sentence

1. Background

Prior to sentencing, a probation officer prepared a presentence report recommending defendant be placed on probation for three years in both the firearm case and the ammunition case, under specified terms and conditions. The listed conditions included payment of: (1) court security fees of $80 in the firearm case ($20 for each count of conviction) and $20 in the ammunition case (§ 1465.8); (2) a restitution fine of $200 in each case (§ 1202.4); and (3) a probation revocation restitution fine of $200 in each case, to be suspended unless probation is revoked (§ 1202.44).

At the sentencing hearing, defendant's counsel objected to certain items in the presentence report, including the calculation of custody credits. After hearing argument from counsel, the court suspended imposition of sentence in both the firearm case and the ammunition case, and placed defendant on probation for three years. The court orally ordered defendant to pay a presentence report fee of $560, and an annual supervision fee not to exceed $240 (§ 1203.1b). In addition, as to both cases, the court stated it was granting probation under the terms and conditions specified in the presentence report (with certain modifications not relevant to this appeal). As to each case, the court asked defendant if he had read and agreed to comply with the conditions of probation in the presentence report. Defendant stated he had read the conditions and agreed to comply with them.*fn19

The court clerk issued a minute order in each case. Each minute order states defendant was placed on probation for three years under the terms and conditions in the probation officer's report. Attached to each minute order is the relevant list of terms and conditions from the report, including the court security fees, restitution fines and probation revocation restitution fines, all in the amounts recommended in the report. Each minute order also states: "Defendant advises the Court he understands and accepts the terms and conditions of probation."

2. Analysis

On appeal, defendant claims the court security fees, restitution fines and probation revocation fines must be stricken from the trial court's sentencing minute orders because the trial court did not orally impose those fines at the sentencing hearing. Defendant relies on People v. Zackery (2007) 147 Cal.App.4th 380 (Zackery). In Zackery, the court applied the rule that "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (Id. at p. 385, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The court found the record was "replete with errors": the trial court clerk's minutes stated defendant had entered a plea of no contest to a charge on which he had never changed his not guilty plea or been convicted; the trial court erroneously imposed a sentence on that charge; and the minutes and abstract of judgment included several fines and fees the trial court had not orally imposed at sentencing, including a restitution fine (§ 1202.4) and a parole revocation restitution fine (§ 1202.45). (Zackery, at pp. 384-387.) The court ordered these fines and fees stricken from the sentencing minutes. (Id. at pp. 388-389, 393.) The court stated the practical reason for requiring imposition of a restitution fine in the presence of the defendant is that the trial court can decline to impose the fine "if it finds compelling and extraordinary reasons for not doing so and states the reasons on the record. (§ 1202.4, subd. (b).) When a restitution fine is imposed in the absence of the defendant, the defendant has no opportunity to address the propriety of imposing the fine or its amount."*fn20 (Zackery, at pp. 388-389.)

Zackery is distinguishable, and there is no basis for striking the fees and fines challenged by defendant. First, the court security fee is mandatory; section 1465.8 provides it "shall" be imposed in every conviction. (§ 1465.8, subd. (a)(1).) When a trial court does not orally impose a mandatory fee or fine, the error is jurisdictional and is subject to later correction in the minutes or the abstract of judgment, or even on appeal. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, 1157; People v. Barriga (1997) 54 Cal.App.4th 67, 69-70.) Accordingly, even if the trial court had not orally imposed the court security fee by incorporating the conditions in the presentence report, the trial court had authority to add this mandatory fee to the minute orders.

Second, although the restitution fine and the probation revocation restitution fine are not mandatory in every conviction (as the trial court can decline to impose them if it finds compelling and extraordinary reasons for not doing so and states the reasons on the record, see § 1202.4, subd. (f)), those fines were also properly imposed in this case. There was no conflict between the sentence orally pronounced by the trial court and the subsequent minute order. At most, the court's oral pronouncement of sentence was incomplete, and only in the sense that it incorporated by reference the terms and conditions in the presentence report (with which the parties were familiar), including the restitution fine and the probation revocation restitution fine. Moreover, defendant and his counsel had the opportunity to address the propriety of imposing the restitution fine (and the corresponding probation revocation restitution fine) at the sentencing hearing. Defendant's counsel had reviewed the presentence report and objected to other items in the report, but did not object to the fines and fees recommended in the report as terms of probation. And, defendant personally assured the court he had reviewed all the terms and conditions of probation and agreed to comply with them. The reasoning in Zackery is thus inapposite.

We also note, in the probation context, conditions may be included in an order of probation that were not orally communicated to the defendant personally by the court. "[P]robation is an act of clemency which imposes no penalties unless the conditions of probation are broken [citation]. The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions." (People v. Thrash (1978) 80 Cal.App.3d 898, 901.) Accordingly, " 'conditions [of probation] need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.' [Citation.]" (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155; see also In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) Here, defendant stated he had reviewed the terms and conditions of his probation and agreed to comply with them.

Assuming the trial court should have pronounced the amounts of the fines orally, any error is reviewed pursuant to the harmless error standard for non-capital sentencing errors. (See People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685.) Reversal is required only when the reviewing court, after careful examination of the entire case, is of the opinion there is a reasonable probability a result more favorable to the appealing party would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) On this record, there is no evidence defendant's fines would have been different had the court pronounced them orally rather than by reference to the presentence report. As noted above, defendant was aware of the conditions of probation recommended in the presentence report, including the amounts of the fines, and he agreed to comply with them. Further, the amounts imposed by the court were the minimum amounts permitted by the governing statutes. (§§ 1202.4, subd. (b)(1) [$200 is minimum restitution fine], 1202.44 [probation revocation fine is to be imposed in same amount as restitution fine].) Finally, the court noted defendant had been involved in "a mini crime spree" in the past few years for reasons the court did not understand; the court stated it was placing defendant on probation to give him the opportunity "one last time" to live "in a law-abiding way." The court warned defendant he would likely face prison if he got into trouble again. This record provides no evidence the court would have found extraordinary and compelling circumstances justifying waiving the minimum fines imposed on defendant.

III. DISPOSITION

The judgment is affirmed.

I concur: Banke, J.

A125803

People v. Delacy

DONDERO, J.

I respectfully dissent.

My objection to the majority will focus on the analysis of the equal protection issue in the opinion. I do not need to discuss defendant's Second Amendment challenge to the statute because, in my opinion, Penal Code section 12021, subdivision (c),*fn21 cannot withstand scrutiny under the equal protection clause of the Fourteenth Amendment.

This is a case where defendant sustained a misdemeanor conviction in California for a violation of section 242 (battery) in 2006. He was placed on probation. In April 2008, while conducting a probation search, officers found four rifles in defendant's home. They were a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. The defendant claimed he used the rifles for hunting game. He testified accordingly. He also represented to the officers he was never advised he could not possess weapons for hunting purposes. He was subsequently charged with a violation of section 12021, subdivision (c)(1), a felony, because he had previously been convicted of the misdemeanor battery offense in California within the past 10 years. The equal protection dilemma posed by section 12021, subdivision (c) is that it only imposes its consequences on persons who have sustained a conviction for certain enumerated misdemeanors in California. A conviction for similar misdemeanor conduct in other jurisdictions imposes no comparable consequence to a convicted individual.

" 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 [39 Cal.Rptr.3d 821, 129 P.3d 29], emphasis in original; see also People v. Dial (2004) 123 Cal.App.4th 1116, 1120 [20 Cal.Rptr.3d 573]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529 [13 Cal.Rptr.3d 166].) "The 'similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714 [63 Cal.Rptr.2d 173].) "Persons who are similarly situated must be treated alike. [Citation.] There is, however, no requirement that persons in different circumstances must be treated as if their situations were similar." (People v. McCain (1995) 36 Cal.App.4th 817, 819 [42 Cal.Rptr.2d 779].) "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.' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654].) "In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws." (People v. McKee (2010) 47 Cal.4th 1172, 1202 [104 Cal.Rptr.3d 427, 223 P.3d 566].)

The majority seems to agree that section 12021, subdivision (c)(1) creates a classification among persons similarly situated, and a glaring classification it is. The statute makes it a felony for a person who previously was convicted of specific California misdemeanors, to possess a firearm within 10 years of that conviction. Several of the enumerated crimes are wobblers, and if a person was convicted of these crimes as felonies, then the person would be charged under section 12021, subdivision (a), a statute that makes felony convictions in California or any other state or federally based jurisdiction a predicate for felony prosecution for possession of a firearm. The equal protection dilemma posed by section 12021, subdivision (c) is that it only imposes its consequences on persons who have sustained a conviction for certain enumerated misdemeanors in California. A conviction for similar misdemeanor conduct in other jurisdictions imposes no comparable consequence to a convicted individual.

However, persons who come to California after being convicted of a misdemeanor-like battery in another state can lawfully possess a firearm without a fear of felony prosecution. Only persons who sustain a conviction of California Penal Code section 242, for example, face potential felony prosecution.

Thus, for purposes of creating a felony offense for possession of a firearm that would otherwise be lawful, the statute treats differently defendants who have committed prior misdemeanor offenses in California, and those who have committed the same prior offenses in other states, with only the former incurring criminal sanctions. This is disparate treatment for similar conduct distinguished only by the fortuity of the geographical place of commission.*fn22

In the recent decision of People v. Hofsheier, supra, 37 Cal.4th 1185, the court found violative of equal protection a statutory scheme which imposed mandatory registration under section 290 for a person convicted of consensual oral copulation under section 288a, subdivision (b)(1) (voluntary sexual act with a minor 16 years or older) but discretionary registration for a person convicted of consensual sexual intercourse under section 261.5. In each instance the criminal conduct is by law consensual, but the conviction of one triggers the mandatory lifetime registration requirement, while the other permits discretionary registration if the sentencing judge determines it is appropriate. Under our notion of equal protection of the laws, the state must advance "some rationality in the nature of the class singled out" for particular criminal prosecution. (Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [16 L.Ed.2d 577, 86 S.Ct. 1497].) Otherwise, the state would be allowed to discriminate between persons similarly situated by classifying their conduct under different criminal statutes. (Lawrence v. Texas (2003) 539 U.S. 558, 582 [156 L.Ed.2d 508, 123 S.Ct. 2472] (conc. opn. of O'Connor, J.).)

Also, in People v. McKee, the defendant challenged his involuntary commitment as a sexually violent predator (SVP) under Welfare & Institutions Code section 6600 et. seq. He claimed it violated his equal protection rights because persons committed under the SVP determinations are treated less favorably than individuals similarly situated under civil commitment statutes like NGI and MDO. The court remanded defendant's case back to the trial court because the claim had "merit" and required further review. (People v. McKee, supra, 47 Cal.4th 1172, 1196.) The court reasoned that persons civilly committed under SVP, NGI or MDO pose substantial harm to the community. Yet, SVP commitments, especially as a result of Proposition 83, enjoy less opportunity to challenge the designation under the statutory scheme. Conceding the statutory differences between civil commitments under SVP's and MDO's, the court observed, "the identification of [these] differences does not explain why one class should bear a substantially greater burden in obtaining release from commitment than the other." (People v. McKee, supra, at p. 1203.)

Here, the defendant's underlying offense is misdemeanor battery in violation of section 242. The facts and circumstances of the underlying conviction are not presented in the record of this case. We cannot determine if the predicate misdemeanor offense involved a weapon of any type, or whether the offense involved any facts which suggested a weapons preclusion order was proper. It was a probation sentence, and we do know the conditions of probation did not specifically preclude possession of any weapons. The defendant did testify he understood he could possess the rifles in issue for hunting purposes. He was not impeached in his cross-examination with any documents or transcript challenging his belief he could keep weapons in his home. We also know that if the defendant had been convicted of the equivalent of section 242 in Arizona or Nevada, for example, this possession case would not be on review now.

In summary, we have a situation where similarly situated persons, i.e., persons convicted of battery in California, and persons convicted of battery in any other state--both persons currently living in California--would result in disparate consequences because of where the individual suffered his misdemeanor conviction. This satisfied the first prerequisite for a meritorious claim under the equal protection clause, a classification that affects two similarly situated groups in an unequal manner. (Cooley v. Superior Court, supra, 29 Cal.4th 228, 253; In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549].)

We turn to an examination of the second level of equal protection analysis. " 'In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' (Clark v. Jeter (1988) 486 U.S. 456, 461 [100 L.Ed.2d 465, 108 S.Ct. 1910]; see also Manduley [v. Superior Court (2002)] 27 Cal.4th [537,] 571 [33 Cal.Rptr.2d 10, 41 P.3d 3] ['equal protection provisions in the California Constitution "have been generally thought . . . to be substantially [the] equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution." ' (Fn. omitted.)].)" (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837 [16 Cal.Rptr.3d 420, 94 P.3d 551].)

With the recent rulings by the United States Supreme Court interpreting the Second Amendment, namely, District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and McDonald v. City of Chicago, Ill. (2010) 561 U.S. ___ [177 L.Ed.2d 894, 130 S.Ct. 3020], courts must now consider what standard of review is constitutionally mandated in the evaluation of gun control legislation. As the majority in Heller observed: "Obviously, the [rational basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. . . . If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." (Heller, supra, at p. 679, fn. 27, emphasis added.) It appears that the rational basis test may not apply to such review in light of Heller's warning that constitutional rights guaranteed by the Second Amendment need to be assessed by a standard more elevated than rational basis. Indeed, the federal courts have recently indicated the test is one of heightened or intermediate scrutiny. (United States v. Skoien (7th Cir. 2010) 614 F.3d 638, 641 (en banc) [federal prosecution under 18 U.S.C. § 922(g)(9) illegal possession of a firearm after being previously convicted of a crime of domestic violence]; United States v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 96 [federal conviction, 18 U.S.C. § 922(k) possession of a handgun with obliterated serial number]; United States v. Chester (4th Cir. 2010) 628 F.3d 673 [federal domestic violence misdemeanor evaluated under intermediate scrutiny]; Peruta v. County of San Diego (S.D.Cal. 2010) 678 F.Supp.2d 1046, 1057-1058.).*fn23 This conclusion makes sense. While Second Amendment rights are not evaluated by strict scrutiny standards like regulations involving race, speech or alienage, they are enumerated specifically in the Constitution and considered as fundamental and individual. (See generally, Clark v. Jeter, supra, 486 U.S. 456, 461.) "To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective." (Ibid., emphasis added.)

Since this case involves the Second Amendment right of an individual to possess a firearm, as discussed above, the standard of review is intermediate or heightened scrutiny, a discussion absent in the majority opinion. Additionally, while Heller indicates there may be historical grounds for precluding convicted felons or mentally ill persons from possessing firearms, there is no evidence that individuals convicted of misdemeanors were precluded historically from possessing guns and rifles. Indeed, the value and necessity of rifles from the musket to the Winchester is almost mythical in the nation's saga. Also, the weapons here were rifles located in the defendant's home. Consequently, we are not dealing with issues concerning a restriction on possession of firearms in a public place or location. Furthermore, we do not have an issue of commercial transactions in weapons where the state may wish to license such conduct. Based on this record, we cannot say the defendant used any weapons in a violent act, domestic or otherwise, or a transaction involving illegal substances. Nor is there evidence in this record the defendant was engaged in violent conduct previously, save a violation of section 242. The only evidence we have in this record is the defendant had certain rifles in his home which he used for hunting purposes, and which he believed he had the right to possess for such purposes.

Consequently, I believe under the heightened scrutiny required for a restriction of a Second Amendment right, the government cannot justify this statute under the equal protection clause of the Fourteenth Amendment.

Indeed, I can go further, without conceding the issue of scrutiny. Even if the rational relationship test is the proper standard of review here, the government cannot present a reasonably conceivable state of facts that could provide a rational basis for the classification. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482 [97 Cal.Rptr.2d 334, 2 P.3d 581].) If there are no plausible reasons for the classification, the classification must fail. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313 [124 L.Ed.2d 211, 113 S.Ct. 2096].) For example, a drug store owner properly challenged a county ordinance that banned the sale of tobacco products at drugstores but not at grocery stores or "big box" stores containing licensed pharmacies on equal protection grounds. (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 439 [110 Cal.Rptr.3d 498].) And a statutory licensing scheme that imposes greater employment restrictions on care providers who had first degree burglary and second degree robbery convictions while not imposing the same on those convicted of murder, voluntary manslaughter, mayhem, or crimes involving the use of a handgun was also found to violate the equal protection clause. (Doe v. Saenz (2006) 140 Cal.App.4th 960, 991-992 [45 Cal.Rptr.3d 126].)

It simply cannot be considered a valid argument that individuals convicted of the enumerated misdemeanors in section 12021, subdivision (c) are more likely to use firearms improperly than those who commit similar crimes in the other states or federal jurisdictions and now reside in California. Geography does not determine dangerousness or likelihood of felonious behavior; yet that is the singular basis for the classification in section 12021, subdivision (c).

The majority argues that California provides due process protections such as the appointment of counsel and admonitions that advise California defendants they could be prosecuted for a felony if they possess firearms after the misdemeanor conviction. As to the latter contention, there is no evidence the defendant here was ever advised he could not possess any firearm as a result of his battery conviction. The evidence of such admonition would be easy to establish with a transcript of the battery plea or sentencing. Yet the record is silent on this battery prior. In fact, the only evidence in this record is the defendant believed he could keep his rifles in his home, as he testified. Regarding the appointment of counsel argument, we need to acknowledge all states, under the Fourteenth Amendment, are obligated to provide a defendant the right to counsel when one's liberty is at issue. (Argersinger v. Hamlin (1972) 407 U.S. 25, 37 [32 L.Ed.2d 530, 92 S.Ct. 2006]; Gideon v. Wainwright (1963) 372 U.S. 335, 341 [9 L.Ed.2d 799, 83 S.Ct. 792].) Alternatively, this record does not reflect defendant had the assistance of counsel when he was convicted of the misdemeanor prior. And even if the record established defendant had been duly advised of the consequences of possession of a firearm imposed by section 12021, subdivision (c), the admonishment would not cure the equal protection violation associated with the disparate treatment given to California and out-of-state misdemeanants. (See People v. McKee, supra, 47 Cal.4th 1172, 1203-1207 [providing certain "guarantees" does not necessarily satisfy equal protection requirements].)

It is also true the problems we discuss here can be easily resolved with legislative action. The Congress has previously determined that federal law should preclude persons previously convicted of a crime involving domestic violence from possessing a firearm. Under title 18 United States Code section 922(g)(9), it is a crime for any person "who has been convicted in any court of a misdemeanor crime of domestic violence . . . [to] possess in or affecting commerce, any firearm or ammunition." Under section 921(a)(33)(A), the term " 'misdemeanor crime of domestic violence' " means an offense that "is a misdemeanor under Federal, State, or Tribal law," and has an element of the use or attempted use of physical force or the threatened use of a deadly weapon on a particular group like a spouse, parent or partner. (Fn. omitted.) In other words, a broad definition of the class of crimes of other jurisdictions would resolve the equal protection issues of this statute. (United States v. Hayes (2009) 555 U.S. ___ [172 L.Ed.2d 816, 129 S.Ct. 1079].) Additionally, this was the approach used by the California Legislature in Penal Code section 12021, subdivision (a), dealing with prior felony convictions that serve as a predicate for prohibiting subsequent firearm possession. As section 12021, subdivision (a)(1), states: "Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, . . . is guilty of a felony." (Emphasis added.) Clearly, the fix to this equal protection problem is simple and has been done by our Legislature as well as the Congress. The two statutes indicated above avoid the equal protection issue and allow for similarly situated classes of convicted misdemeanants to be equally and fairly treated.

The majority contends this suggested fix would require local prosecutors to review statutes and records from other states or jurisdictions before they could make charging decisions. However, that review has already been adopted by federal prosecutors in the case of title 18 United States Code section 922(g) cases and the California Legislature has obligated prosecutors to assess "felony" convictions in "any other state, government or country" under section 12021, subdivision (a). Again, we are focusing on an enumerated right that is entitled to heightened scrutiny before it may be regulated by the Legislature. It is not a simple restriction on commercial behavior that is reviewed by the rational basis test. And, the burden to check records from other states is little enough to ask where failure to do so unequally subjects only those with California prior misdemeanor convictions to felony prosecution. In my view, the majority has not established a satisfactory and legally valid basis to discriminate, for purposes of the right to keep and bear arms, between similarly situated persons, previously convicted of a similar misdemeanor in California and another state, who then reside in this state.

Therefore, this conviction must be reversed because section 12021, subdivision (c)(1), is unconstitutional.

Dondero, J.

People v. Dalacy,

A125803

Trial Court: Napa County Superior Court

Trial Judge: Hon. Diane M. Price


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