A161128
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 11/16/21
CERTIFIED FOR PUBLICATION; (Napa County Super. Ct. Nos. 19CR002012, 19CR001954)
After a court trial, defendant Justin Chapman Fisher was convicted of five destructive device felonies.1 Three of those offenses—possession with intent to make a destructive device, public possession of a destructive device, and sale or transportation of a destructive device—were subject to prison sentences served in county jail pursuant to
Couzens et al., Sentencing California Crimes (The Rutter Group 2021-2022) §11:20, p. 11-52.)
Relying principally on People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan), Fisher claims the disparate punishment of offenders convicted of the simple possession crime violates constitutional equal protection principles by treating similarly situated classes of offenders differently with no rational basis for the disparate treatment. Following Noyan’s lead (id. at p. 660), we reform the statute to eliminate the constitutional infirmity and modify the judgment accordingly.
BACKGROUND
Fisher was stopped for reckless driving and his car was searched. Officers found what appeared to be explosive devices, which Fisher said were fireworks, in the trunk. The explosives team arrived and identified three pipe bombs: a capped white PVC pipe with a fuse, a capped black plastic pipe with a fuse, and a red cardboard cylinder with a fuse. The black pipe contained 15 grams of flash powder. Both it and the PVC device would explode if their fuses were lit, possibly causing serious injury to anyone holding them; the cardboard tube would burn and dissipate, probably inflicting a serious burn.
Fisher was arrested and released on bail. The friend who facilitated his bail release found bottles of chemicals in a garage Fisher used and called the police. The police found chemical powders and an AR-15 rifle, with no serial number, capable of accepting a magazine.
The district attorney charged Fisher in an information with possession of a destructive device (three felony counts) (
destructive device on a highway (
Fisher waived a jury trial. The court found him guilty of possession with intent to make a destructive device, reckless possession of a destructive
DISCUSSION
Had Fisher been convicted of the 1170(h)-eligible destructive device offenses but not simple possession, he would have served his prison term locally in county jail. Because the convictions for simple possession precluded that sentence, Fisher argues the statutory disparity violates his right to equal protection. The Attorney General responds that the issue is moot, forfeited, and meritless. We conclude the claims are neither moot nor forfeited and that
I. Fisher’s Equal Protection Claim is Properly Before This Court.
Before turning to the merits of Fisher’s constitutional argument, we briefly address and reject the Attorney General’s assertions that it is moot or was forfeited.
The Attorney General argues Fisher forfeited the constitutional claim by not asserting it at sentencing. A claim not asserted in the trial court survives forfeiture if it presents “a pure question of law . . . remediable on appeal by modification of the condition” which “does not have an impact on the same proceedings ‘downstream’ ” and which “presents an important question of law that . . . is likely to be reviewed on the merits by the appellate court.” (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
“We have . . . created a narrow exception to the waiver rule for ‘ “unauthorized sentences” or sentences entered in “excess of jurisdiction.” ’ ” (People v. Smith (2001) 24 Cal.4th 849, 852.) Because these sentences “could not lawfully be imposed under any circumstance in the particular case” (People v. Scott (1994) 9 Cal.4th 331, 354), they are reviewable “regardless of whether an objection or argument was raised in the trial and/or reviewing court.” (People v. Welch (1993) 5 Cal.4th 228, 235.) We deemed appellate intervention appropriate in these cases because the errors presented “pure questions of law” (ibid.), and were “ ‘clear and correctable’ independent of any factual issues presented by the record at
This is such a case. While Fisher did not challenge his sentence on equal protection grounds in the trial court, the claim presents “a pure question of law” “remediable on appeal by modification of the [sentence]”
which “does not have an impact on the same proceedings ‘downstream’ ” and which “presents an important question of law.” (In re Sheena K., supra, 40 Cal.4th at p. 888.)
The Attorney General next urges us to deny Fisher’s claim as moot because he has served his custodial sentence. “[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) Here, upon completing his prison sentence,5 Fisher was subjected to a three-year period of postrelease community supervision that is not imposed on defendants sentenced pursuant to the Realignment Legislation. (
II. Equal Protection Analysis
A. Legal Principles
Turning to the merits of Fisher’s claim, we find no rational basis to deny those convicted of the simple possession offense the benefits of a county jail sentence that the Realignment Legislation affords those convicted of the more serious 1170(h)-eligible destructive device offenses.
“ ‘ “The equal protection guarantees of the
Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, “equal protection of the law is denied only where there is no ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74, quoting People v. Heller (1993) 509 U.S. 312, 320.) “This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. ([Heller,] at p. 320.) While the realities of the subject matter cannot be completely ignored ([Heller,] at p. 321), a court may engage in ‘ “rational speculation” ’ as to the justifications for the legislative choice ([Heller,] at p. 320). It is immaterial for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the record.’ ” (Turnage, at pp. 74–75.) To mount a successful rational basis challenge, a party must “ ‘negative every conceivable basis’ ” that might
support the disputed statutory disparity. (Heller, at p. 320; see Turnage, at p. 75.) If a plausible basis exists for the disparity, courts may not second-guess its “ ‘wisdom, fairness, or logic.’ ” (Heller, at p. 319; see Turnage, at p. 74; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
While “it is irrelevant whether the perceived reason for the challenged distinction actually motivated the Legislature, equal protection ‘does require that a purpose may conceivably or “may reasonably have been the purpose and policy” of the relevant governmental decisionmaker’ [citation] and that ‘the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.’ [Citation.] Thus, . . . we must undertake ‘ “ ‘ “a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals” ’ ” ’ [citations] by inquiring whether ‘ “the statutory classifications are rationally related to the ‘realistically conceivable legislative purpose[s]’ [citation]” . . . and . . . by declining to “invent[] fictitious purposes that could not have been within the contemplation of the Legislature.” ’ ” (Noyan, supra, 232 Cal.App.4th at pp. 667–668.)
B. The Realignment Legislation
“The Legislature enacted the 2011 realignment legislation addressing public safety (Realignment Legislation) to address a fiscal emergency and
“In conjunction with the Realignment Legislation, the Legislature added
The Realignment Legislation made reckless possession or possession on a highway of a destructive device (
C. Section 18710
Simple possession of a destructive device can either be punished as a misdemeanor by imprisonment in the county jail for a term not to exceed one year, or in state prison. (
declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison . . . .” (
When the Legislature enacted
D. Analysis
Rejecting Fisher’s suggestion that the disparity was an “oversight,” the Attorney General attempts to “discern a legislative purpose” for it. The Attorney General posits that “a person found in violation of section 18710 is not necessarily similarly situated with a person found in violation of sections 18715, 18720, 18725, 18730, or 18740. And given this broad range of conduct varying widely in seriousness, the Legislature could rationally have decided that the sentencing court should have the discretion under section 18710 to impose a misdemeanor county jail sentence or a felony state prison sentence.”
The Attorney General unfortunately does not identify any criteria that may justify the disparities in the statutory punishment for the offenses, but instead describes Fisher’s conduct and observes that “the potential for and degree of harm (physical and psychological harm) to Fisher, to the public, and to property was great.” Remarkably, the Attorney General begins by reminding us that “Fisher was stopped on the highway” before enumerating
the destructive device items found in the car.7 He warns that one of the items, flash powder, “is highly unstable, ‘sensitive to shock, heat, and friction.’ ” Apparently the Attorney General overlooked the Legislature’s decision in the Realignment Legislation to include “reckless[] or malicious[] . . . possession” of any “destructive device or any explosive” “[o]n a public street or highway” (italics added)—the conduct he contends warrants state prison—as an 1170(h)-eligible destructive device offense punishable in county jail. (
Nor does the Attorney General elaborate on his declaration that a person convicted of simple destructive device possession is “not necessarily similarly situated” to one convicted of an 1170(h)-eligible destructive device offense. Instead, he merely speculates without explanation that “the Legislature could rationally have decided the sentencing court should have discretion
The Attorney General’s failure to provide a persuasive rationale for the disparity does not excuse us from completing our task to “ ‘undertake “ ‘ “ ‘a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals’ ” ’ ” [citation] by inquiring whether “ ‘the statutory classifications are rationally related to the “realistically conceivable legislative purpose[s]” [citation]’ . . . and . . . by declining to ‘invent[] fictitious purposes that could not have been within the contemplation of the Legislature.’ ” ’ ” (Noyan, supra, 232 Cal.App.4th at p. 668.)
In Noyan the court began its analysis with “[t]he legislative scheme in place prior to the Realignment Legislation.” (Noyan, supra, 232 Cal.App.4th at p. 669.) And that provides a logical starting point for our inquiry. Senate Bill No. 1080, “Weapons—Deadly—Nonsubstantive Reorganization of Statutes,” “reorganize[d] without substantive change the provisions of the Penal Code relating to deadly weapons.” (Stats. 2010, ch. 711 (Sen. Bill No. 1080 (2009-2010 Reg. Sess.) Sept. 30, 2010.) Senate Bill No. 1080 reaffirmed that possession of a destructive device was punishable either as a misdemeanor or in state prison for a term of 16 months, two or three years. (Stats. 2010, ch. 711, § 6 (Sen. Bill No. 1080 (2009-2010 Reg. Sess.) Sept. 30, 2010).)
Both possession of materials with the intent to make any destructive device or explosive and sale or transport of a destructive device were punishable by imprisonment in state prison for two, three or four years. (Stats. 2010, ch. 711, §§ 18720; 18730.) Reckless or malicious possession of a
destructive device or any explosive on a public street or highway was punishable by imprisonment in the state prison for a period of two, four, or six years. (Stats. 2010, ch. 711 (Sen. Bill No. 1080 (2009-2010 Reg. Sess.) Sept. 30, 2010;
“From this legislative history we must conclude the Legislature considered” the conduct prohibited by sections 18715, 18720, 18730, and 18740 to be “a more abhorrent problem” than simple possession of a destructive device or explosives under
We do not “second-guess the wisdom, fairness, or logic of the law” but can discern no “plausible basis exists for the disparity.” (People v. Edwards (2019) 34 Cal.App.5th 183, 195–196.) Simple possession is a lesser included offense of two of the 1170(h)-eligible destructive device offenses for which Fisher was sentenced, and the third offense was 1170(h) eligible. (People v. Westoby (1976) 63 Cal.App.3d 790, 795–796 [simple possession a lesser of recklessly or maliciously possessing a destructive device and explosive];
sections
Even more glaring is the anomaly that conviction for exploding or igniting any destructive device or explosive with intent to injure, intimidate or terrify a person or to damage or destroy another’s property is punished in county jail, but conviction for the lesser included offense of simple possession requires state prison. (
The incongruity is evident from the application of
custodial term is served in county jail. But if, as with Fisher, the court concludes that neither misdemeanor punishment nor probation is appropriate, it must order the defendant confined in state prison notwithstanding that the more serious destructive device offenses may be punished by a jail term.
Nor are the disparities in punishment confined to the custodial term. When sentencing pursuant to
The Attorney General acknowledges that “a county jail sentence could include a period of mandatory supervision under
destructive device while creating a presumption in favor of early release for those convicted of the more serious offenses, including exploding a destructive device with intent to injure a person or to destroy the property of
Our analysis compels the conclusion that persons charged with the various destructive device offenses are similarly situated and that there is no “ ‘realistically conceivable legislative purpose[]’ ” (Noyan, supra, 232 Cal.App.4th at p. 668) to require a state prison sentence for those convicted of possession while affording the benefits of county jail incarceration for the 1170(h)-eligible destructive device offenses. We therefore reach the same conclusion as in Noyan: “the disparate application of
E. Remedy
“ ‘In choosing the proper remedy for an equal protection violation, our primary concern is to ascertain, as best we can, which alternative the Legislature would prefer.’ [Citations.] An express purpose in enacting the Realignment Legislation was to ‘[realign] low-level felony offenders . . . to locally run community-based corrections programs’ to decrease recidivism and improve public safety.” (Noyan, supra, 232 Cal.App.4th at pp. 671–672.) Having reviewed the legislative history of both Senate Bill No. 1080 and the Realignment Legislation, we agree with Noyan that the proper remedy is to
reform the provision, here
DISPOSITION
The matter is remanded to the trial court with directions to terminate Fisher’s postrelease supervision and to modify the judgment consistent with this opinion.
Ross, J.*
WE CONCUR:
Pollak, P.J.
Brown, J.
A161128 People v. Fisher
* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to
Trial Court: Napa County Superior Court
Trial Judge: Hon. Monique Langhorne
Counsel:
Spero Law Office, Leah Spero, under appointment by the Court of Appeal, for Defendant and Appellant
Rob Bonta, Attorney General, Lance E. Winters and Michael P. Farrell, Assistant Attorneys General, Louis M. Vasquez, Darren Indermill and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A161128 People v. Fisher