The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
MEMORANDUM DECISION RE PETITIONER'S REQUEST FOR RECONSIDERATION RE THE SEPTEMBER 30, 2011 ORDER RE DESTRUCTION OF FIREARMS (DOC. 88)
Before the Court for decision is Petitioner Dennis Napier's request for Reconsideration of a September 30, 2011 Order Re Disposition of Firearms, or in the alternative for a stay pending appeal of that Order. Doc. 88.
On January 30, 2009, special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), with the assistance of officers from the Clovis Police Department, executed a federal search warrant at Petitioner's residence in Clovis, California. During the search, agents located and seized ten (10) firearms. The seized firearms were accepted into the ATF system on February 2, 2009 and a notice was sent to movant on February 23, 2009.
On June 26, 2009, petitioner filed a motion for return of property pursuant to Federal Rule of Civil Procedure Rule 41(g). Doc. 1. The United States opposed on the ground that Mr. Napier was subject to a firearms restriction under California Law. Doc. 2.
The record reflects that on February 10, 1993, Mr. Napier was convicted of two counts of felony assault in violation of California Penal Code Section 245(a)(1). The Information states, "said defendant, on or about June 28, 1992, did willfully and unlawfully commit an assault . . . with a deadly weapon, to wit: a racquetball racket, and by means of force likely to produce great bodily injury." Doc. 32, Ex. A. Mr. Napier was sentenced to State Prison for a total of four years. Id. Execution of the sentence was suspended, and Mr. Napier was placed on five years formal probation. Id. Pursuant to California Penal Code Section 12021, convicted felons are prohibited from owning or possessing firearms. See also Cal. Penal Code §12021.1(b)(24); 18 U.S.C. § 922(g)(1).
On April 21, 2003, the Fresno County Superior Court set aside the verdict in Mr. Napier's case and dismissed the Information pursuant to California Penal Code Section 1203.4(a). Doc. 20, Ex. A. The Court also declared the offense to be a misdemeanor pursuant to California Penal Code Section 17(b). Id. However, the Superior Court specifically stated:
Dismissal of an accusation or information pursuant to [Section 1203.4(a)] does not permit the petitioner to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under Penal Code Section 12021.
The Magistrate Judge issued Findings and Recommendations recommending rejection of Mr. Napier's Petition:
The Court rejects Mr. Napier's argument that he is entitled to return of the firearms based on the state court's reduction of his offense to a misdemeanor. When a state prison sentence is imposed for the violation of a "wobbler" offense, the offense is fixed as a felony even where execution of that prison sentence is suspended pending the defendant's successful completion of probation. See People v. Wood, 62 Cal.App.4th 1262, 1271 (1998) citing People v. Banks, 53 Cal.2d. 370, 385-386 (1959). The offense is permanently considered to be a felony and the trial court "lacks authority" to reduce such an offense to a misdemeanor "when sentence has been imposed and suspended." Id.
Because Mr. Napier was sentenced to state prison, his offense was fixed as a felony at the time of imposition and the state court was without jurisdiction under Penal Code Section 17(b) to reduce the offense to a misdemeanor. Pursuant to California Penal Code Section 1203.4 and the state court's order, Mr. Napier is still subject to a firearms restriction and therefore his motion for return of property pursuant to Rule 41 (g), an equitable remedy, should be denied.
The Court also rejects Mr. Napier's argument that he is entitled to return of the firearms pursuant to his rights under the Second Amendment to the United States Constitution. In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court held for the first time that the Second Amendment's right to bear arms is an individual right rather than a collective right. In Heller, a special police officer challenged the District of Columbia's gun-control statutes effectively banning handgun possession by any person in the District of Columbia. However, the Court expressly held that "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 ...