71 Cal.App.5th 745
Cal. Ct. App.2021Background
- Fisher was stopped for reckless driving; officers found three pipe bombs (one with 15g flash powder) and other explosive materials in his car; police later found chemicals and an AR-15 in a garage he used.
- Charged and convicted after a court trial of multiple destructive-device felonies: three 1170(h)-eligible destructive-device felonies (possession with intent to make, possession on a highway, sale/transport) and two felony counts of simple possession under Penal Code §18710 (a wobbler).
- Because §18710 felony convictions require state-prison terms (and were not made §1170(h)-eligible by the 2011 Realignment amendments), the trial court ordered state prison, triggering up to three years postrelease community supervision under §3451.
- Fisher appealed, arguing the sentencing disparity (§18710 state-prison requirement vs. county-jail exposure for related 1170(h) offenses) violates equal protection; he relied principally on People v. Noyan.
- The Court of Appeal rejected the Attorney General’s mootness and forfeiture defenses and concluded the §18710 state-prison mandate lacks a rational basis and violates equal protection.
- Remedy: the court reformed §18710 to make it punishable under §1170(h), directed the trial court to terminate Fisher’s postrelease supervision, and to modify the judgment accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forfeiture / Mootness | Fisher: constitutional challenge is a pure question of law and not forfeited; not moot because postrelease supervision remains | AG: Fisher forfeited by not raising at sentencing; moot because he served prison term | Court: no forfeiture (pure legal question); not moot (postrelease supervision and precedent value) |
| Equal Protection of Sentencing | Fisher: §18710's requirement of state prison treats similarly situated offenders worse than 1170(h)-eligible destructive-device offenders without a rational basis | AG: Classes not necessarily similarly situated; Legislature could rationally allow discretion under §18710 | Court: classes similarly situated; no plausible rational basis; statutory scheme violates equal protection |
| Remedy | Fisher: reform §18710 to be punishable under §1170(h) so offenders get county-jail sentencing and mandatory supervision parity | AG: implicit preference for preserving statutory scheme | Court: reforms §18710 to conform to §1170(h) purposes; remands to modify judgment and terminate postrelease supervision |
Key Cases Cited
- People v. Noyan, 232 Cal.App.4th 657 (court reformed sentencing statute where Realignment created irrational disparity)
- In re Sheena K., 40 Cal.4th 875 (exception to forfeiture rule for pure questions of law remediable on appeal)
- People v. Turnage, 55 Cal.4th 62 (describes rational-basis review for statutory classifications)
- People v. King, 5 Cal.4th 59 (legislature unlikely intended a lesser included offense to carry harsher consequences than the greater offense)
- People v. Westoby, 63 Cal.App.3d 790 (simple possession is a lesser included offense of other destructive-device offenses)
- People v. Edwards, 34 Cal.App.5th 183 (equal protection can require parity in sentencing or release opportunities)