People v. Mesce

Dist., Two. Div. Feb. 1997.] A071221.First [No. PEOPLE, Plaintiff Respondent,

THE MESCE, Defendant and RICHARD CANNIFF Appellant. publication.*] certified for [Opinion partial 976.1, Court, 976(b) opinion this is certified rules *Pursuant California Rules of exception parts with III and IV. publication VI, Court, assigned by pursuant Chief Justice to article *Judge Superior of the Alameda section 6 of the California Constitution.

Counsel Green,

Geri under the Court of for Defendant Lynn appointment by Appeal, and Appellant. General, Williamson,

Daniel E. Chief Assistant Lungren, Attorney George General, Bass, General, Ronald A. Assistant Attorney Attorney Christopher Meade, General, W. Grove and R. Tyler for Plaintiff and Deputy Attorneys Respondent.

Opinion contest to a Mesce no pleaded Richard Canniff LAMBDEN, J.Defendant convicted. and was consequently misdemeanor assault charge (c), made it an subdivision Penal Code section Effective conviction of various after firearm within 10 years possess offenses, committed of assault previously including type misdemeanor this convicted of violating us defendant was In the case before defendant. clauses of the federal statute, the ex He contends others. among under the statute him from prosecution Constitutions protect and state We because we for its violation. disagree of his conviction reversal require In an unpublished portion effect is not retroactive. find the statute’s to his conviction. other challenges we also defendant’s reject opinion,

Background Code, 664, 187; (Pen. murder

Defendant was with charged attempted §§ noted, Code); with are the Penal assault references unspecified except (a)(2), use of a firearm subd. (§§ a deadly weapon, involving personal 1192.7, within 12022.5), of a firearm (c)(8), subd. and unlawful possession (c)). (§ assault subd. of convicted of a misdemeanor being 10 years The other defendant fired shots at him with a revolver. The victim testified her house while a man fired witness testified she saw the victim near running and claimed to have a rifle towards him. Defendant denied shots firing any local Coast Guard station or been in a shed on his own at the property, claimed on the of day boat between those two locations. He also traveling by had, kill him and contrary the victim had threatened to alleged shooting shots at him. to the fired allegations, actually him murder but found guilty attempted jury acquitted of a firearm by assault with a firearm and

aggravated guilty possession court denied pro- of a misdemeanor assault. The one convicted previously term of seven years, defendant to for a total bation sentenced prison conviction. concurrent term for the firearms possession including two-year appealed. Defendant promptly

Discussion retroactive

I. The statute is not done before an act An ex facto law is one which later punishes post twin, the bill of law and its evil of the The ex facto the enactment law. (legislation purports attainder convict decree and without the trial), inconvenience have been anathema to the American legal system from its courts refer to the ex inception. Although traditionally post facto in the two such exist in the prohibition singular, actually proscriptions (U.S. a third United States Constitution and in the California Constitution. Const., I, 9, 3, 10; I, Const., cl. Cal. art. art. § § § “[(1)]

The effect the ex is to invalidate: Every law, law that makes action done before the of the and which was passing done, criminal; [(2)] innocent when such action. law punishes Every that crime, was, or makes it it aggravates greater [(3)] than when committed. law that inflicts Every changes punishment, and a greater punishment, crime, than annexed [(4)] the law to the when committed. law Every evidence, less, alters the rules of legal and receives or different testimony, offense, than the law at the time of the commission required order (Calder Dali.) 386, (3 convict the offender.” v. Bull 3 U.S. 390 [1 omitted; 650], L.Ed. italics Collins v. Youngblood 497 U.S. S.Ct. 30].) L.Ed.2d

The second and third are contention foregoing categories and, here taken whether together, subdivi pose question (c), sion additional imposes the defendant punishment retroactively upon his (See previous misdemeanor. Cummings (4 Missouri 71 U.S. 277, Wall.) 356, 363-364], 325-326 L.Ed.2d as in Weaver [18 v. quoted 24, (1981) 960, 963-964, Graham 450 28 U.S. S.Ct. 67 L.Ed.2d [101 17] “ ex [holding post facto clause prohibits any law which ‘imposes a for an act was punishment which at the time it was punishable commit ted; ”]; additional then imposes to that proscribed’ v. Beazell 167, 68, (1925) 69, Ohio 269 216], U.S. 169-170 S.Ct. 70 L.Ed. [46 37, quoted 2715, Collins v. Youngblood, U.S. 42 supra, 497 S.Ct. [110 2719].)

In 37, Collins v. U.S. Youngblood, supra, 497 the United States Supreme Court discusses meaning of the ex facto post clause: “Although the Latin ‘ex phrase post law ‘after literally encompasses any passed facto' the fact’ it has long recognized been this Court by that the constitutional on ex laws post statutes which applies only penal facto 37, offender affected them. U.S. disadvantage (497 41 by [Citations.]" 2715, 2719].) S.Ct. The California Court [110 has observed there is Supreme no difference significant between the federal and state constitutional ex post facto Collins to affirm the provisions quoted exclusive estab categories Bull, 386, Dall.) lished 3 (3 Calder v. U.S. supra, almost 200 years ago. 282, (1991) 592, v. Court 53 (Tapia Cal.3d Superior 295-297 Cal.Rptr. [279 434].) 807 P.2d

623 assure that legislative Framers sought this “Through prohibition, on their rely individuals to of their effect and permit Acts fair warning give also govern- ban restricts changed. [Citations.] until meaning explicitly vindictive legislation. arbitrary potential restraining mental power by that our decisions accord with these prescribe purposes, [^0 [Citations.] law to ex a criminal or penal must be present two critical elements is, to events that it must occurring it must be apply retrospective, facto: enactment, the offender affected it. its and it must disadvantage before 960, Graham, 24, S.Ct. (Weaver 450 U.S. 28-29 v. [101 [Citations.]” 964], omitted; (1996) 46 Advocates v. fns. see also Pro-Family Gomez 1674, 600]; (1992) 4 v. McVickers People 1683 Cal.Rptr.2d Cal.App.4th [54 850, 81, 955]; Youngblood, 85 840 P.2d Collins v. Cal.4th Cal.Rptr.2d [13 37, 2715, 2718-2719]; (9th 41 U.S. v. Huss Cir. U.S. S.Ct. supra, 497 [101 1444, 1447.) 1993) F.3d 7

An was v. People settled Mills analogous question posed (1992) (Mills) 6 1278 which Cal.Rptr.2d upheld Cal.App.4th 310] [8 12021, (a), amendment to section subdivision which extended the 1989 ban of firearms make a felon of concealable previous possession by (1993) firearm a further court Helmer v. Miller 19 felony. 8], line 1571 followed Mills and a Cal.Rptr.2d [25 older cases convictions similar ex upheld despite challenges (1970) (People v. 10 Venegas Cal.App.3d [89 103] [upholding 1965 amendments which the maximum sentence for lengthened felon]; (1925) firearm James possession by People v. Cal.App. (James) law]; P. [rejecting challenge felon-in-possession [235 81] (Camper- P. Camperlingo Cal.App. 601] [231 [same]; lingo) cf. 229-230 People McCloskey Cal.App. argument infringed P. law [rejecting felon-in-possession 930] vested v. Smith P. property right]; Cal.App. carriage 1917 statute which criminalized of concealed [upholding 696] areas]). in weapons urban Mills, felon in the court the conviction for a being affirmed defendant’s of a even at the time of his offense and

possession shotgun though prior a was concealed convicted felon barred from sentencing, only carrying in In re analysis firearms. court the California Court’s adopted Supreme P.2d Cal.3d 936-937 Cal.Rptr. 897] [218 Ramirez (Ramirez), which held a inmate’s forfeiture of sentence credits for prison and not of misconduct was the result of the later misconduct prison solely therefore, served; the offense which the sentence was being changes for prior ex facto clause. in such forfeitures did not violate the the rules effecting in as follows: “It true The Mills court former Justice Lucas quoted Ramirez 1982 amendments he petitioner only prisoner because is a apply committed he act only and that because before prisoner Nonetheless, amendments. the increased sanctions are be- imposed solely cause after petitioner’s prison occurring misconduct the 1982 amendments 936; (Ramirez, Mills, became effective.” supra, quoted 1278, 1285.) Supreme Court the new reasoned statute only applied Ramirez felon, the defendant because he was convicted a status he had achieved before the statute contention became effective. Since the new statute date, i.e., to an event after applied only its effective defend- occurring ant’s effective, of a after the statute possession weapon became sanc- tioned event occurred after the effective date amend- statute ment was not retroactive. As stated the Mills fact of his majority: “[T]he conviction prior him into a makes places status which the new law to him. The applicable his legal consequences conduct were not past a new law was changed—only applied (6 his future conduct.” Cal.App.4th 1278, 1286.)

We find applying (c), subdivision to defendant did not violate ex constitutional because defendant was con- principles victed based on conduct after occurring the effective date of the statute.

II. The statute does not punish his original defendant for Similar has been reasoning to statutes applied heavier impose punishments offenders who upon have violated the law. previously

California cases have allowed the application enhancements punish ment based on convictions. In previous Jackson 37 Cal.3d (overruled 694 P.2d Cal.Rptr. on different grounds 736] People Guerrero 44 Cal.3d 355-356 1150]), P.2d enhancement was based on a serious-felony prior burglary enacted, conviction before occurring the enhancement was court “No stated: constitutional bar of section 667 to the prevents application later offense because the solely conviction which serves as basis prior the enhancement was before committed the initiative In the context passed. statutes, of habitual criminal ‘increased penalties subsequent offenses are attributable the defendant’s status as a offender and as an repeat arise incident the subsequent offense rather than for the constituting penalty Jackson, 833; offense.’ prior Cal.3d (People supra, 37 at p. [Citation.]” 445, (1983) see also v. Williams 140 448 Cal.App.3d Cal.Rptr. [189 497]; 49, 920].) v. Dolliver 181 57 Cal.App.3d Cal.Rptr. [225

625 12021, Likewise, (a), amendment which subdivision the former section 1278, Mills, ex withstood an post 6 supra, was in contention James, 374. The court in James cited 71 supra, Cal.App. facto attack a felon-in- upheld in which the court supra, Cal.App. Camperlingo, had of which the defendant even the though felony conviction possession of the act which created to the was committed prior passage been convicted (id., court’s analysis The Camperlingo the of felon-in-possession. crime for not cases 470-473) considering criticized the dissent in Mills was pp. by disabilities, burdens or previously with the “increase of penalties dealing was previ- criminal for which defendant on or from acts imposed resulting 1278, 1298.) (Mills, ously supra, Cal.App.4th convicted[.]” the not law which defendant retro- Clearly merely “disadvantages” every The did not to the is an ex facto law. Mills succumb spectively post majority Court’s of the term confusion the United States use engendered by Supreme Graham, as in Weaver v. 450 U.S. as well in two supra, “disadvantaged” case, dissent, however, and in this have later decisions. The Mills such as a limitation on “disadvantage,” contended mistakenly retrospective the is to and therefore indic- right possess gun, equivalent However, law. the United States ative of an ex facto impermissible post Court created its references to Supreme prior has corrected the ambiguity 37], U.S. the “After Collins focus “disadvantage” by stating: [supra, ex is not whether a inquiry legislative change produces some but ambiguous sort . . on whether such of‘disadvantage,’. change alters the definition of criminal or penalty by conduct increases which crime is punishable.” (California Dept, Corrections v. Morales 506-507, U.S. 595].) fn. 3 S.Ct. 131 L.Ed.2d is not distinction made in cases between the terms always on, . . . back or directed to “retrospective [l]ooking contemplating, . and “retroactive . to a past,” [influencing prior . applying period (American 1541-1542.) Diet. (3d 1992) enactment.” ed. It is a Heritage pp. leads to distinction is since it merely pedantic, description what in a law facto: to the contended to be ex permitted looking past what is present, acting presently change inform also prohibited: is not whether this convicted miscreant question past. Accordingly, armaments, denied the but rather whether statute advantage presently aims for the crime. former change original inquiry the punishment settled cases allow- leads to an naturally equal argument long protection to a uniform class of to limit the laws ing Legislature application convicted felons. Dubose (People such persons previously 235]; James, 378- Cal.App. Cal.App.3d 379.) The answer to the latter must be question negative. “Mills,

As out ex facto pointed majority questions ‘[s]ome have arisen in type connection with increased-punishment passage laws, which of habitual criminal enhanced for later of- imposed penalties if has been fenses the defendant convicted of one or more crimes. previously crime at a If the defendant commits A time when there is no habitual statute, criminal then such a statute is passed increased imposing punishment offense, B, for a and then second the defendant commits crime it is not within ex the habitual to criminal statute apply A, crime B. No additional for crime but punishment prescribed for B, new crime which was committed after the statute was passed. it is to define a as Similarly, crime limited certain conduct permissible engaged who have heretofore convicted some persons been other offense and to the statute to one whose earlier offense and apply convic- tion (Mills, the enactment this statute.’ predated supra, [Citation.]” Scott, Cal.App.4th 1 LaFave & quoting Substantive Criminal 2.4, Law § burden, i.e.,

The Mills dissent assumes increased disability and firearm, own is a inability further of the punishment defendant’s prior conduct, without the critical of whether the acknowledging statute question or, rather, creates newa prior to an prohibits identifiable class of persons subsequent conduct of a gun by owning reason of their as status convicted offenders more to misuse arguably likely firearms. distinction a statute presented by prohibiting such conduct by convicted is the offenders same one presented by enhancements punish- offenses; ments on those convicted of imposed future and distinct in both instances the defendants have by their conduct proven separated themselves into an identifiable class to which the Legislature’s police may powers so apply, long (See situated persons similarly are treated In re equally. Eric J. 25 Cal.3d 601 P.2d 549] regarding equal protection.) Mills,

The instant case not distinguishable from supra, Cal.App.4th 1278, because there is no reasonable distinction (a) between subdivisions (c) of section 12021 which would the reasoning invalidate Mills court itself opinion. has so concluded In re Evans Cal.App.4th (Evans) (conviction Cal.Rptr.2d reversed on 314] equal protection grounds; the court found unconstitutional the classification of those relief from the permitted of section subdivision operation (c)). brief, Evans, In a late-filed letter attempts rely upon to contend his “inability” petition restoration of the firearm, under section prosecution avoid thereby to right possess his under said section. We invalidate conviction (c), must subdivision to the entire statute invalidate court had note the Evans opportunity first In the instant case there expansively. to statute interpret but chose instead nor, fact, contained in such any language evidence petition no this defend- (c)(3), which would have prevented section subdivision time limits. statutory within the ant from relief such seeking petition raised, been have assuming argument timely even Accordingly, case, his conviction was we contention which is not the defendant’s reject First, is no evidence clause. there void as a violation of protection equal bear arms to subdivi- pursuant of his right he did restoration petition Evans, as did the defendant (c)(3) of section sion Second, was not from making 1263. this defendant prevented (c)(3), he even of subdivision assuming under the petition language such Third, the court for relief existed. Evans knew the statute and its provision of the inclusionary provision used correctly remedy expanding firearms for restoration of the right possess statute permitting petition but for argue Defendant rather than the entire statute. nullifying appears the right his for restoration of petitioning possess from “prevention” firearms, not have so have been restored and he could his to do would right at best and speculative been found in violation of the statute. This criminal certainly unpersuasive.

III., IV.*

Conclusion found no of the ex facto provisions violation Accordingly, having inherent the statute the United States and California Constitutions we no affirm arguments, advanced other tenable having judgment.

Haerle, J., concurred. P. Acting HODGE, J.,† from the affirmance J.,f dissent Dissenting part.—I of a firearm in on the unlawful possession conviction charge judgment 12021(c)). (c) (section subdivision violation of Penal Code section footnote, ante, page *See 618. VI, Court, to article pursuant Chief Justice Superior assigned by the Judge of the Alameda † 6 of the California Constitution.

I. ex clause law which prohibits any punishes persons, (See their conduct increases its enactment. Cum- punishment, predating 277, 356, (1866) (4 Wall.) v. Missouri 71 U.S. 325-326 L.Ed. mings [18 363-364], 24, (1981) in Weaver v. Graham 450 U.S. 28 S.Ct. quoted [101 960, 963-964, 17]; 167, (1925) 67 L.Ed.2d and see Ohio U.S. 269 Beazell 68, 69, 216], S.Ct. 70 L.Ed. 169-170 Collins v. quoted Youngblood [46 37, 2715, 2719, Thus, (1990) 30].) U.S. 42 111 497 S.Ct. L.Ed.2d no [110 (1) can be to a if its him statute defendant effect on is applied retrospective, (2) (1996) Advocates v. 46 punitive. (Pro-Family Cal.App.4th Gomez 1674, 600]; 81, (1992) 1683 4 Cal.Rptr.2d v. McVickers Cal.4th [54 850, Graham, 955]; 85 840 P.2d see Weaver v. 450 Cal.Rptr.2d [13 24, 960, 965-966]; U.S. S.Ct. Collins v. Youngblood, U.S. supra, 497 [101 37, 2715, 2718-2719]; (9th S.Ct. 1993) U.S. v. Huss Cir. 7 F.3d [110 1444, 1447.) defendant, holds that section 12021(c), as is majority applied

neither nor I retrospective The conclusion that punitive. disagree. the law rests retrospective authorities which are either entirely nonbinding or which reflect a fatal inapposite error. The conclusion that the law logical is not (1) is unsound because punitive law challenged subjects effect; (2) imprisonment, the law bur- forthrightly penal substantially dens defendant him from in otherwise lawful activ- by prohibiting engaging ities; the law lacks fide bona other than any purpose punishment. Furthermore, I whether question of such can ever imposition consequences on a to which the defendant constitutionally predicated charge pleaded here, like the defendant guilty, with no notice that his would later plea firearms, disable him from and would him to possessing expose imprison- ment should he do so.

II. Court Supreme has declared that a law is “retrospective” purposes of the ex facto clause “if it of acts ‘changes legal consequences before its (Miller effective date.’” v. Florida 482 U.S. completed 423, 351], S.Ct. 96 L.Ed.2d Weaver v. [107 quoting Graham, 960, 965-966].)1 supra, 450 U.S. S.Ct.

The law here was explicitly under rational “retrospective” application of this test. It of acts indisputably changed legal consequences completed majority rejects “retrospective” 1The the term in favor of “retroactive." The United States Supreme employed “retrospective” Court has the word in the context of the ex (See Bugajewitz v. Adams years. clause for at least 228 U.S. S.Ct. 591 [33 978].) on whether a statute looks quite appropriately 57 L.Ed. The word focuses in other- engaging from First disabled defendant it its effective date. before cherished, by many and indeed enjoyed, of a type lawful conduct wise Second, violating prohibition. sentence for it a prison imposed conduct could not have defendant’s applied, would not The Therefore those conduct.3 for his but preenactment been punished, have as to him. retrospective were effects on the majority to the rests contrary largely conclusion

The majority’s 310], (1992) 6 Cal.Rptr.2d v. Mills opinion “determinative”) the (and Supreme declared which in turn relied upon (1985) 39 Cal.3d 936-937 [218 Court’s re analysis Ramirez only remotely pertinent In truth 705 P.2d 897]. Ramirez inmate filed a petition the before us. A validity prison of the statute the and of a for accrual statutory plan the to him new challenging application had found an infraction credits. Prison authorities loss of sentence-reduction The con and his credits days. petitioner the reduced petitioner clause, in because under the rules the ex facto tended that this violated loss of the of he to maximum credit effect at time his offense was exposed 15 days. held the were retrospective

The Court that amendments Supreme in for misconduct while they only prison, because concerned the sanctions i.e., in In a and italicized quoted after their adoption. passage subsequently Mills, wrote, the “It is that the 1982 amendments apply Court true Supreme he that is a only to because is a and he petitioner prisoner prisoner only Nonetheless, the of amendments. because an act committed before the 1982 mis- increased sanctions because of petitioner’s prison are imposed solely (Ramirez, the effective.” conduct after 1982 amendments became occurring 936; Mills, at at supra, p. 39 Cal.3d see p. 1285.) us. in has in the circumstances before

Nothing any parallel logical Ramirez The in case was a cause the conduct that petitioner’s preenactment met, backwards. If it before us—the test is patently does—as is the case with the statute analysis proceed ex then to the retrospective. the statute must be held must question punitive. whether effect the statute’s is argument question ability in parties both embroiled the whether the 2At oral became “right” the for “privilege.” significance or a I see no distinction possess firearms is vel preenact non determining retrospectivity prohibition of a conditioned on purposes of the enacted, was free enough say was prohibition ment is that before the conduct. It was revoked based firearms, took this freedom possess and that when the effect entirely preenactment “retrospective.” on his conduct. Such effect convenience, recognizing that brevity fully “preenactment” 3I use term enactment, which date on applicable purposes but the date for most is not date irrelevant, context, “preen factually present takes effect. In the distinction statute precision. up may makes what it lack actment” succinctness (and offense) was a subsequent penalty penalty consequence prior sense, i.e., in a purely would not have been in petitioner factual misconduct, and would not have been prison, subject discipline prison had he not been sentenced to previously conviction imprisonment following of a The relevance of the conviction was circumstan- felony. prior entirely Indeed, described; tial. offense is never the court prisoner’s says only that the had been for a crime petitioner “imprisoned committed before (39 1983.” Cal.3d offense was January prisoner’s nothing than more a historical antecedent to his in the presence It prison population. irrelevant legally was case him. It follows that the disciplinary against effects the amended credit forfeiture rules were not legal consequences acts before their effective completed date. us, hand,

The statute before on the other looks backwards in a that the way Ramirez, amendments in Cal.3d could not be supra, 39 said to do. The conviction here is not a historical prior for the merely precondition punish- ment now but an element being imposed, of which he explicit Moreover, has been convicted. nothing the chal- suggests Ramirez amendments burden lenged new imposed any compliance prisoners; rather redefined the they flow from consequences might subsequent Here, misconduct. the statute prison a new instantly imposed prohibition, defendant from legally disabling a theretofore lawful engaging activity, that conditioning explicitly, directly, on unconditionally preenactment conduct. The offense here was prior not a mere it was an element happenstance; of current (People v. Venegas Cal.App.3d offense. Therefore, 103].) Ramirez, unlike the warden in 39 Cal.3d supra, had no

931—who occasion to evidence of the present prisoner’s preenact ment offense—the here was prosecutor compelled prove the prior a reasonable To beyond doubt. that a statute its suggest explicitly predicating on effect such is not offends both the proof “retrospective” of plain meaning that term and the core values reflected in the ex facto clause. post

The second source of for the major Mills was the support holding that “. . . a statute which general increases the of principle punishment prior offenders is not an ex facto law if it is after events post applied occurring rule, (6 however, its effective 1286.) date.” at This is its Cal.App.4th p. by terms to section which does not inapplicable simply impose offenders,” . . . but which creates a punishment prior “increase[d] [on] crime which can be committed offenders. The Mills only by prior majority fails to between a law which an enhanced distinguish imposes based on demonstrated tendencies and one which imposes recidivist conduct, explicitly predicated on otherwise unique prohibition lawful conduct. preenactment that distinction between persons seems to this say

The Mills majority offenses and those punished more due severely prior punished all, if at as a violation of equal of must be challenged, because offenses prior fabled 1286.) This is a (6 pure example at p. protection. Cal.App.4th Indeed, ex facto it be drawn across post red could herring. path law Every increasing punishment retrospec- however meritorious. challenge, offenders) classification establishing (prior can be conceptualized tively (before Mills) noYet court treatment disparate (punishment). subjected is to such law somehow challenge that an ex facto implied ever post The end result the Mills clause. by equal protection superseded superfluous would be to render the ex facto clause entirely treatment law, course, is its domain to the clause. equal entire ceding protection law, If of an ex it otherwise. a statute contains elements Gomez, Cal.App.4th extent void Advocates v. (Pro-Family that 1674, 1683), a state interest whether it regardless might supported by sufficient to defeat an equal protection challenge.

Moreover, the Mills based its rejection equal protection majority “acts on all on the law argument uniformly premise question (6 the affected class.” This no answer persons to an is that the law of such a equal protection challenge. gist challenge class, on members unconstitutionally imposes consequences are not law does not shared others. Here consequences challenged effect, it “act on all those to its terms. When takes those uniformly” subject who have not suffered a conviction avoid the burden yet disqualifying may law from the of a offense. commission by refraining predicate By offense, such an assumes the risk of voluntarily committing perpetrator convicted, further and as a disabled from being prosecuted, consequence, contrast, already those who have suffered a firearms. possession find suddenly conviction when the takes effect themselves qualifying law burden, they to a new unheralded the risk of which never had and subjected assume, had never an they and the opportunity imposition 1, Here, 1994—seven to avoid. defendant woke up January opportunity form of criminal after no contest to the most innocuous years pleading of which with disability assault known our burdened law—suddenly the prior he had when he committed neither nor Legislature any inkling offense, was manifestly no so. Such doing disability contest pleaded retrospective. Ramirez, People in Mills are two most cases closely relied-upon

After 374, v. Camper- P. and (1925) People v. 378 James 71 Cal.App. [235 81] 466, suffer from P. Both (1924) 472 decisions 601]. 69 lingo Cal.App. [231 this same failure to between a law which distinguish certain prohibits and conduct offenders more and one which punishes prior severely prohibits critical, conduct offenders. The distinction by, punishes, only prior for cases on a rationale which has no repeat-offender rely proper application context. Their rationale that “increased for subse present penalties offenses are attributable to the defendant’s as a quent status offender repeat and arise as an incident the subsequent rather than constituting 910, (In (1974) for the offense.” re Foss penalty prior Cal.3d 922 [112 649, 1073], added; Mills, P.2d italics Cal.Rptr. see 1287, (1985) v. Jackson 37 Cal.3d quoting 736], P.2d Cal.Rptr. overruled on other in People [210 grounds Guerrero 1150]; 44 Cal.3d 748 P.2d 517, 521-522, Parke v. Raley 506 U.S. 26-27 S.Ct. 391]; L.Ed.2d McDonald v. Massachusetts 180 U.S. 312 [21 S.Ct. 45 L.Ed. is for the new crime punishment only, 542] [“The words, but is the if criminal.”].) heavier he is an habitual In other having second, crime, committed a the defendant independently subjects defined himself to the Legislature’s broad to determine the power that penalties crime; that exercising view power, Legislature may recidivism as to enhance grounds for the new penalty offense. The defendant has no cause for in such a case: the complaint itself does not him single offender; rather, been, out as a prior like the rest of the he has at all public, times, it; relevant on notice of the and like other consequences violating members of the he public, avoid those may his consequences by conforming conduct to the laws. That general his failure to do so is not the first of its inference, kind with which supports there can be no constitutionally grounded he merits a more quarrel, burdensome punishment. Leg entitled, words, islature is in other find that the classic concerns of deterrence, sentencing—retribution, enhanced incapacitation—favor for those who violate criminal repeatedly laws of general application.

This rationale to a appears statute which its terms makes inapplicable conviction an essential condition of prior In such a case it is any punishment. that the tautological the “status say possesses repeat [of] offender.” He can considered a offender repeat by assuming issue, i.e., that the statute under point be scrutiny may constitutionally statute, all, to him. defendant has violated that if applied only by virtue of the former offense. The more and fair-minded precise premise offender, that the defendant is a now to because exposed punishment former of conduct made unlawful conviction of the offense. The only by former threatened cannot be construed “incident” newly punishment as an plausibly conduct, solely of the for that would not conduct the subsequent expose

633 In to the second contrast without the offense. prior to sanction any to and cases, a defendant an immediate such the law exposes offense, he burden, which did not on the prior based entirely unconditional his by conforming could not avoid the and with the rest of public share to such activities. applicable to the laws generally conduct Indeed, us preenactment the one before places a statute such as noof Unlike convicted persons burdensome offender in uniquely position. offense, in the proscribed his right engage he is unable to protect prior of the to the general requirements his conduct activity conforming law, offenses after convicted persons disqualifying criminal and unlike he cannot assume of the statute voluntarily enactment disqualifying to have had a on him. At no time can he said disability imposed freedom to in the engage or waive his preserve meaningful opportunity are an unheralded His choices activity question. accept encountered, that prohibition he never voluntarily disregard to his class. punishment suffer unique Mills, reasons, I cited in supra,

For all these find the central legal principle 1278, James, supra, Camperlingo, Cal.App. insufficient to the conclusions reached Cal.App. support are the other cases cite those conclu- supportive those cases. Nor they In the court People upheld sions. Venegas, supra, Cal.App.3d an ex- lengthened statute which the sentence for firearm possession be, essence, felon. The defendant’s that the sentence argument appeared offense, not the time for such an offense was fixed as the time of the prior conceded, however, As his argument prohi- unlawful possession. the time of his His was possession bition itself existed at conviction. prior more to cite some therefore at all times unlawful. He would seem no entitled earlier than would other offender who commits a penalty provision any has been increased. recently Although crime for which punishment rationale, the court cited James and and the second-offender Camperlingo on the more that where holding would to rest basic appear proposition times, it is violation of the ex conduct has been at all relevant no unlawful conduct, facto clause to increase the such provided of the statute. enactment the increase violation precedes 930], P. In 229-230 McCloskey Cal.App. considered; rather the defendant contended addressed here was argument “ a crime to own continuing ‘one cannot be convicted of lawfully that ” (Id. his at p. which had become lawfully property.’ possess did not fall within that the statute rejected argument, noting The court this of an ex facto law. definitions recognized 696], P. the court Cal.App. v. Smith the carriage statute criminalizing a conviction under upheld 634

concealed in urban areas. The offense weapons could be committed without conviction; effect of such a prior conviction was to elevate the offense to a felony. statute therefore resembled the one before us less one than based enhancing on punishment offenses. prior sum, Mills, In I believe the 6 majority supra, 1278 was Cal.App.4th mistaken in that a statute of holding this is not That type case retrospective. failed to and thus recognize, James, perpetuated, erroneous equation supra, 374 and Cal.App. Camperlingo, supra, between Cal.App. 466 statutes which predicate new and wholly unique disability preenactment conduct, and those which enhance the criminal offenses based upon defendant’s suffered having convictions. prior That critically erroneous decisions, has since been equation reiterated in implicitly two district, from the same (Helmer Mills. v. uncritically apply Miller 1565, (1993) 8]; Cal.App.4th In re Evans Cal.Rptr.2d [25 314].) 1268-1269 I Cal.Rptr.2d [57 cannot join it majority promulgating further.

III. I also with the disagree conclusion majority’s 12021(c), that section defendant, applied not punitive. majority from quotes language Chief Justice to the effect Rehnquist that a measure is not for ex “punitive” facto purposes because it merely (Cal- “disadvantages” prior offenders. Dept, 506-507, Corrections v. Morales 514 U.S. fn. 3 ifornia 1597, 1602, S.Ct. 595].) L.Ed.2d Yet the statute here did not defendant; merely it “disadvantage” him flatly from prohibited engaging otherwise lawful conduct of a type enjoyed by Americans. This many means, was not enforced by civil or regulatory but by prosecu- tion and punishment of violation as a There felony. is no doubt that imprisonment constitutes “punishment” ex purposes analy- McVickers, sis. v. (People 4 Cal.4th supra, 85.) To belittle such a as a mere consequence “disadvantage” compromises majority’s analysis. whether a considering particular effect is statutory “punitive,” ultimate issues are legislative purpose and statutory (People effect. McVickers, 81, 87, supra, 1.) Cal.4th fn. These questions require inquiry (Ibid, into legislative motives. motivation is government’s central [“the whether the question legislation ‘vindictive’ and hence ‘arbitrary’ banned”].) must be Thus “a statute has been considered if it nonpenal imposes disability, but to punish, some other accomplish legitimate governmental v. Dulles purpose.” (Trop 356 U.S. S.Ct. 630]; McVickers, 2 L.Ed.2d 4 Cal.4th However, the into inquiry legislative must be and search- purpose genuine it is not concluded ing; “mere assertion of a Legislature’s nonpunitive

635 McVickers, 88; fluss, v. Cal.4th at see v. purpose.” (People supra, U.S. p. 1444,1447-1448 legislature 7 F.3d not insulate from swpra, itself may [“[A] an ex that a statute’s is to challenge simply by asserting purpose conduct rather than conduct. The regulate prior design overall present punish intent.”]; and of the effect statute must bear out the Pro-Family non-punitive Gomez, Advocates fn. 12 mere supra, [“The a assertion of does end our We not nonpunitive regulatory purpose inquiry. must test the to determine with proffered purpose if it consistent regulation.”].) this we conducting are consider relevant factors such as inquiry

“ restraint, the sanction involves an affirmative disability ‘[w]hether whether it has been as a whether it comes historically regarded punishment, scienter, into on only of play finding whether its will operation promote deterrence, aims traditional of and punishment—retribution whether crime, behavior to which it whether an alternative applies already it, to which it be purpose connected is may rationally assignable whether it excessive in relation to the appears alternative assigned purpose McVickers, . . . .’” (People v. 4 Cal.4th Kennedy quoting 554, 567-568, (1963) 372 U.S. S.Ct. 168-169 [83 Mendoza-Martinez 644], omitted.) L.Ed.2d fiis.

While I find these several of factors to be the rest toward equivocal, point finding punitive sanction here involves an purpose: affirmative i.e., restraint, disability a prohibition, enforced on the by imprisonment, possession which others property It comes into may lawfully possess. play (See upon finding scienter. v. Howard Cal.App.3d violate section “a Cal.Rptr. 689] [to defendant must have of the character knowledge of the object possessed”]; v. Valencia Cal.App.3d 301] sawed-off possessing [crime was shown if defendant “knew she shotgun violated, had possession item And if not question”].) even inflicts a prohibition be may which understood significant legal injury for, deter, exact retribution if not offenses of the included within its type sweep. however,

Most I do believe firearms significantly, by violators of Penal possession Code section 240 can rationally assigned other than the infliction additional purpose past upon offense, This offenders. follows because of its triviality underlying lawlessness, as a of future irrational inadequacy predictor completely offenses, exclusion of incoher- greater, necessarily inclusive utterly ent in the I find the record. conclusion explanation legislative appears of provision affecting avowed purpose specific that the

inescapable 12021, rests on of section with the overall scheme is inconsistent best, law, therefore, at as “arbitrary” of and is misconceptions more one or to defendant. applied triviality, assault on verges particu- of misdemeanor simple

The offense 12021(c) on section its of consequences imposed larly light unlawful than an attempted battery—“an It is more nothing perpetrators. on the to commit a violent injury with ability, a coupled present attempt, 240; id., Code, battery any (Pen. cf. of another.” [“A person § § another.”].) or person use of force violence upon willful unlawful not involve an offense need the reference to “violent such injury,” Despite (2d Criminal Law ed. (1 at all. Witkin & Cal. Epstein, real “violence” any Person, words ‘vio- 1989) 466-467 pp. Crimes Against [“The § have no real significance . . . . . . and ‘violent’ these lence’ [in statutes] .”]; . . constitute . touching’ may battery least .... ‘[T]he (1993) 14 Cal.Rptr.2d 60] [“Convictions Babich or of violence do not necessarily findings assault and battery imply simple or on the least menace.”].) touching, Since the offense can be predicated or a moral turpitude it does not reflect necessarily attempted touching, (See v. Thomas 206 Cal.App.3d readiness to do evil. general 15].) 694 [254 Code section 240 violation of Penal The details defendant’s particular unknown, in a bar. fact that it stemmed from altercation beyond are claim which events—a Defendant denied recollection of the underlying any event, usual, such deserve more credence than may given setting. violent conduct as described minimally a conviction could rest on such above. crimes this most innocuous of physical

Section 12021 would leverage firearms, on the into a 10-year prohibition possession against person 12021(c); see Pen. in prison. (§ with violations by up years punishable to the be rationally disproportionate Code I find this consequence § offense.4 predicate were not enough assault if simple

Even the relative inconsequentiality the underlying predi- a between itself establish marked disproportion sanction, 12021(c) includes irrationally cate offense and the ultimate provisions for relief might given it the statute’s 4I “fit” is better than be recognize that the However, petitioning a court for possibility of prohibition. I do not believe that the from the discretion, outweighs relief, very a broad extaordinary may granted or denied within which favoring characterization other considerations penal sanctions and hugely disproportionate “punitive.” of the measure offenses, several most or all that offense while excluding neighboring lesser include assault as a included offense. Sec- necessarily simple on 12021(c) disability tion does not impose firearms-possession persons Code, (Pen. or convicted of misdemeanor assault on school park property Code, Code, (Pen. (Pen. 241.2), 241.1), or a custodial officer juror § § Code, (Pen. 241.3), 241.7), a transit or or on public employee passenger § § Code, Code, (Pen. 241.4) (Pen. school district officer peace employee § 241.6). statute five Yet the does list other offenses which near quite appear § tihe included an statutes in the code: assault on officer or other person Code, (Pen. 241); or duties official on a performing emergency battery § server, fiancé, officer, former peace safety provider, process public spouse, fianceé, Code, (Pen. 243); or or taser dating partner gun assault with a stun § Code, Code, (Pen. 244.5); (Pen. 245); assault with a deadly weapon § § firearm, with assault on a school a stun or gun, employee deadly weapon, Code, (Pen. 245.5). taser § the rational above is explanation classification not inadvertence or

incrementalism, assumes, as the but a deliberate distinc- majority apparently tion between offenses to serious warrant of a firearms enough imposition and offenses sufficient disability valence for that lacking predictive purpose. Against (Pen. Code, this the of inclusion light simple misdemeanor assault 240) so, is completely irrational and that arbitrary—doubly considering § omitted all offenses include the necessarily assault. Thus a simple off, defendant convicted of one of these is greater offenses better terms of firearms, legal ability possess than one convicted of the lesser included Indeed, a offense. defendant in misdemeanor one of prosecution under omitted statutes would be well advised to think twice before permitting offense; jury be instructed on the lesser included who hopes to hunt ducks within the ten ensuing well years prefer conviction of might the greater offense.

But it is not merely unfairness such a which is of concern. regimen It is the patent that if a irrationality supposing jury convicts the defendant assault, simple defendant unfit to Legislature presumes the possess firearms, but no such arises if the defendant is convicted of the presumption inclusive offense of necessarily greater assault on a school simple employee. Such a scheme is statutory manifestly arbitrary peremptory.

Nor does shed favorable on this anything legislative history light irrational scheme. facially classification On the contrary, any lingering hope for a bona fathom fide alternative eradicated purpose attempt Legislature’s (and reasons for Penal section 240 its including concep- Code twin, 242) 12021(c). tual Penal Code section section 1990, misdemean- 12021(c) listed disqualifying

As enacted with law enforce- interfere ors, tending involved violence each of which violence, or of firearms their ment, or the misuse of such or the threat 9, 2, 1990, 52.)5 for the The rational (Stats. explanation ch. equivalent. § offenses, 240 and the Penal Code section while excluding of these inclusion above, noted a legislative judgment offenses other assaultive inference of increased dangerousness 20 offenses warranted the these overin- concern to avoid A disability. legislative justified imposition inclusion, dele- eventual temporary clusion is further suggested (See Bill No. tion, offense. Assem. one other firearms-related of at least Pen. Sess.) [adding 9p. as amended June (1989-1990 Reg. or Code, high- road firearm from (“shooting upon public 374c a[] § 2, Code, 374c].) Pen. ch. 52p. [omitting cf. Stats. way”)]; § § one effect Bill No. Assembly the Legislature adopted code sections to the list 12021(c) to add five which was amend section (Stats. ch. offenses triggering ten-year prohibition. § individuals among firearm possession of the bill was “to deter stated purpose Bill No. a record of domestic violence.” (Sen. Floor Assem. Rep., with added; 31, Hearing on Assem. 1993), Sen. Com. on Judiciary, italics (Aug. 13, Hearing 1993); Com. on Public Safety, No. 242 see Assem. (July Bill 3, 1993) domestic victims of (June protect on Assem. Bill No. [“to deadly weapon with intent carrying a in 1990 enactment were: 5The offenses included 1101, 1982, 136.5, (Pen. Code, adopted by as Stats. ch. testifying from prevent person a § (Pen. 1, prosecution 4002); in p. threatening with force or violence because of assistance § Code, 171b); (Pen. Code, 140); building meeting bringing public a or weapon § a into § office, (Pen. grounds or capítol grounds, a school possessing a loaded firearm in state Code, 171c); of a in the or the residence possessing a loaded firearm Governor’s mansion § Code, (Pen. 171d); performing person or other assault on officer constitutional officer § officer, Code, 241); safety (Pen. battery public peace on a emergency or official duties § Code, finance, fiancee, (Pen. server, dating partner spouse, or provider, process former (Pen. Code, 244.5); deadly weapon 243); gun assault with a with a stun or taser assault § § firearm, Code, gun, or (Pen. 245); deadly weapon, a stun employee on with assault a school § Code, 246.3); (Pen. Code, (Pen. 245.5); discharge grossly negligent of a firearm § taser § Code, vehicle, (Pen. aircraft, dwelling unoccupied or house discharging at an motor a firearm manner, rude, or angry, threatening 247); deadly in or exhibiting weapon a or firearm a § rude, Code, 417); angry, or (Pen. exhibiting replica in a fight of a firearm using it in a § 1988, Code, 417.2, manner, (Pen. ch. as Stats. using fight or amended threatening it in § 1605, 2, 5820-5821); educational grounds public of a possessing a firearm on pp. § Code, discharge (Pen. 626.9); a firearm from vehicle permitting another to institution § 12034, (d)); 12034, Code, (§ subd. (Pen. (b)); from a vehicle discharging subd. a firearm § (Pen. Code, (a)); possessing armor- subd. selling a to a minor concealable firearm § firearm, Code, or (Pen. 12320); or concealable carrying a loaded piercing ammunition § Code, 12590). 12021(c), adopted (Pen. (§ as deadly weapon, in a strike participating while § ch. Stats. § in effect Several statutes as 1990. foregoing descriptions apply The cited by citing last They identified here materially since then. are have been altered statutes prior to amending enacting statute 1990. or further the hand of a who has already injured violence from harm at person them”].) added

Consistent with this three of the dis- overarching purpose, newly (Stats. offenses concerned domestic or relational violence. qualifying Code, ch. Pen. 273.5 cohabi- [willfully citing injuring spouse, § §§ tant, member]; order domestic family restraining 273.6 [violation two, however, violence]; 646.9 had do [stalking].) remaining nothing with domestic violence. were Penal Code sections 240 and They misdemeanor misdemeanor assault respectively simple simple penalize These offenses are not unrelated to domestic battery. only definitionally all, violence; noted, as involve “violence” at they scarcely previously but the most dilute and sense. their abstract inclusion Assem- Accordingly Bill 242 is on bly No. its face somewhat curious.

The inclusion of these offenses is in two explained only materially (Assem. identical before the on Public Committee reports Assembly Safety. 20, 1993); Com. on Public on No. 242 Hearing Assem. Bill Safety, (Apr. on (June 3,1993) Assem. Com. Pub. Bill No. Hearing Assem. Safety, state that (collectively Reports).)6 Reports predicate identifying offenses, 12021(c) enacted in to the code sections 1990 “refers setting opposed crimes as to the sections code forth the crimes defining .... Last the Sutter District year County Attorney ., suggested referencing 240 . . since listed section[] section[] [is] the sections which among would to the subject additional person penalt y.[7] Section 240 an defines assault. what provides Section an is assault ... . The most universal is to [sz'c] practice of someone with charge violating 240 .... are never [P]eople section[] convicted . . (Assem. . 241 . . . .” Com. on Public [under] Safety section[] (June 3,1993) added, on Bill Assem. No. Rep. italics references to Pen. Code, omitted.) 242 & 243 §§ taken,

This extremely could be perplexing exposition glance, first to mean that the author of the believed proposed Legisla- “correction” that the ture intended to include originally misdemeanor assault in the list of simple predicate offenses. There is no in suggestion any materials provided that any or intended to include misdemeanor legislator proposed simple assault as defined in Penal Code section 240. indicates Legislative history matter, filing 6Four and respondent one-half months after its brief in submitted a this unindexed, “legislative consisting voluminous of of history” many pages hundreds of unau thenticated, unintelligibly organized Respondent and has not attention to materials. drawn our text, any part except of these materials discussed in which we to allude the rationale already through independent had discovered efforts. 7Apparently during same been the bill in the proposal this had “deleted from Senate” supra.) previous legislative (Reports, session. Thus Senate Floor on the 1990 amendments could Report a contrary. (b) it section subdivision when stated to Penal Code referring be of so the classes individuals expand prohibited that the bill “would [from . of . to include misdemeanor offenders convicted . possessing firearms] . . . .” or individual involved in official duties a officer assaulting peace Com., 1990) (Feb. of (Sen. 3d Assem. Bill No. 497 reading analysis Rules Moreover, noted, assault an intention include simple previously adjacently seems with the exclusion of several Legislature’s irreconcilable than, assault, incor- definitionally each more serious defined forms Indeed, been intent had the not Legislature assault. porating, simple overinclusion, con- person it could have stated that any avoiding simply assault, kind, the ban. would be any subject victed of misdemeanor be which would it enumerated the forms of assault specifically Instead included, officers of them either threat to law enforcement involving most firearms, or equivalent. or the use of their deadly weapons, or processes, event, the is with misinformation. Each rationale riddled legislative It is is either or erroneous. untrue misleading of the italicized statements define listed in the statute failed to substantive the code sections The most of this statement is that crimes. that can said support define the individually assaults do separately statutes concerning however, a suffi- No such definition is required, supply word “assault.” The term “assault” well under- cient conduct description enjoined. law, in our moreover is defined in Penal Code stood explicitly are 240. Both the common and the definition meaning legal statutory more forms statutes proscribing specific implicitly incorporated to that is no reason cross-reference explicit assault. There more definition, definition, or cross-reference to a definition than there word It was not cite section legally necessary “firearm.” simply one more of the statutes included order to effect to the citation of give the 1990 version the statute. the supposed concern with suggests rationale quoted particular 241 an accompanying of Penal Code section without citing

ineffectiveness 241, (b) (241(b)), 240.8 Section subdivision citation to Penal Code section for, of, a police the assault on punishment defines the crime and prescribes or duties.9 author emergency other official person performing officer or under confused the inclusion by was of the “correction” proposed apparently battery, set forth respect misdemeanor as substantially 8A situation exists with identical 243, (a). ignore statutes for largely We will those 242 and subdivision in Penal Code sections equal with analysis apply to them recognize that our seems simplicity, sake of but the force. officer, firefighter, emer person of against peace committed the a 9“When an assault server, technician, process lifeguard, traffic paramedic, gency mobile intensive care medical

641 (a) 241(a)), (§ same section number of out the subdivision sets the assault as for misdemeanor section punishment simple 240.10 defined the enumeration of would more Admittedly, these be if provisions systematic (b) sections, (a) subdivisions section 241 rather appeared separate However, two subdivisions of the same intent than section. the and effect of statutes, other, the and the of a citation to one or the meaning plain 241(a) Section defines enough: 240 assault. Section simple prescribes 241(b) for a assault. simple prescribes Section defines punishment misdemeanor on a assault officer.11 punishment simple peace Likewise, I am more than satisfied that neither the text the statutes nor that, within furnishes actual reason usage judicial system suppose claimed, as author of the correction are never convicted “people [under] (Assem. . . (June 1993) . 241.” Com. on Public Safety Rep. section[] Assem. Bill A No. conviction of misdemeanor assault on simple is, officer conviction section peace logical 241(b). under necessity, Since section 241(a) another merely prescribes assault), (simple misdemeanor it would be nonsensical of a speak convic- 241(a). elimination, under tion By “conviction” process which can be to “241" attributed must a conviction of assault on a peace Thus, (b). officer under subdivision a number of published opinions speak 241(b) convictions under section under convictions “241.”12 To be simply officer, duties, engaged or animal officer performance control in the or her his or a clinic, physician engaged or in rendering emergency hospital, nurse medical care or outside facility, person committing other health care and the reasonably the offense knows or should officer, technician, peace know that the firefighter, emergency victim is a medical mobile server, officer, paramedic, lifeguard, process intensive care traffic or animal control officer duties, engaged performance in the physician engaged rendering of his or her or a or nurse care, emergency by medical punishable exceeding assault is a fine two not thousand ($2,000), dollars by county jail year, or imprisonment exceeding not one or both the 241(b).) imprisonment.” (§ fine and 241(a) 10Section provides, punishable by exceeding “An assault is a fine not one thousand ($1,000), months, by imprisonment county jail dollars or exceeding in the six both imprisonment.” fine and specialized battery 11Theother chapter forms of assault cited in the same Penal (or pattern, declaring simply battery) Code follow this same that an “assault” under stated 241.1, (See Code, 241.2, 241.4, punishable circumstances is in a stated manner. Pen. §§ 241.6, 241.7, 243.2, 243.1, 243.3, 243.5, 243.6, 243.7, 243.8.) (1972) 921]; 12E.g., Lynch Cal.Rptr. In re 8 Cal.3d P.2d 503 v. [105 (1979) (dis. Cal.Rptr. opn.); People Tamer Cal.3d 596 P.2d v. [156 328] 218]; Cal.Rptr. Cal.App.3d Jones Fimbres Cal.App.3d 876]; People Cal.App.3d fn. Martinez 859, 288, 515]; (1975) 863 Cal.Rptr. Cal.App.3d Cal.Rptr. In re Becker 48 291 [142 [121 759]; 592, (1975) 23]; City Cal.App.3d Cal.Rptr. In re Wells 46 Rose v. Los 600 [121 of 883, (1984) 49]; (1984) Angeles Cal.App.3d Jeffrey Cal.Rptr. 159 888 Michael R. v. B. [206

642 to section sure, specifically tend to cite the offense newer decisions some sec- Furthermore, cited the offense to both some older decisions 241(b).13 However, to a violation of referring 241.14 practice 240 and tions 1990, and the 241(b) of “241” was common as one simply section of it when it included to have been aware must be presumed Legislature offenses. 12021’s list to “241” predicate reference token, was committee report appar- the author 1993 the same By nonexistence as not asserted its erroneously of this aware ently practice, added to the list. Since the for Code section 240 a reason Penal adding and no for this purpose, citation of that statute was completely superfluous that statute the inclusion of rational I conclude that other purpose appears, I was, Since analysis, arbitrary punitive.15 of ex facto purposes defendant, to I would 12021(c) retroactive as applied also believe section clause, and that its to him offends the ex post hold that application be reversed. on that count must conviction judgment IV. of section 12021 to

I further concerned am application admission of no contest—an his conviction rested on plea because 1987 since been knowing voluntary which could not have criminal culpability would, a direct consequence him notice that the state it could not place him as a and imprison him from firearms plea, possessing of his prohibit I believe a result is of that do not such prohibition. felon violation the direct must be advised of of the rule that a defendant light be tolerated re (See is entered. plea of his or her the time plea consequences (1982) City Krueger v. Anaheim 1059, 312]; 130 Cal.Rptr. Cal.App.3d 158 1067 [205 166, 170, Cal.Rptr. Cal.App.3d 173 631]. [181 351]; Cal.Rptr.2d 13E.g„ People (1996) 42 fn. 5 v. Simons [50 Delahoussaye People 886, 48]; People (1991) Cal.Rptr. v. v. White Cal.App.3d 227 888 [278 (1988) 1,5,7 287]; People v. Mitchell Cal.App.3d (1989) Cal.Rptr. 199 Cal.App.3d [261 213 300, Cal.Rptr. 302 [244 803]. Raymond 89, 33]; 517, (1973) Cal.Rptr. 510 P.2d 14E.g., In re James M. 520 Cal.3d [108 (1975) 506]; In re Kubler (1980) Cal.Rptr. Superior B. v. Court Cal.App.3d People v. Townsend 25]; Cal.App.3d Cal.Rptr. Cal.App.3d 802 [126 Cal.Rptr. 25]; Cal.App.3d Booher CaLRptr. 697 [98 617], 857]; Colbert Cal.App.3d 81 [85 logical reason 15Furthermore, statutory furnished a enumeration peculiarities even if the list, purpose some without I fide alternative would not find bona section 240 add closely objective by more Legislature the same showing could achieve additional I anomaly. means, perceived eliminate the e.g., renumbering the affected statutes to tailored to draconian arbitrary subject large class of misdemeanants inherently it consider taking behind prevented from cover simply serious offenders are penalties to ensure that more statutes them poorly drawn “corrections" retrospective Such infelicities in codification. the ex facto clause. provoke the concerns of selves core Birch 321-322 Cal.3d 515 P.2d 12] conduct, urination, on lewd on guilty based plea public [conviction reversed for failure advise of sex offender registration requirement]; (1993) 6 v. McClellan Cal.4th Cal.Rptr.2d P.2d not to advise defendant with sexual charged assault sex 739] [error Evans, offender In re registration supra, at requirement]; p. case, 12021(c) reaching objection [not but assuming poten merit].)16 tial

Moreover, from California authorities apart concerning necessity advisements of the a adequate consequences plea, we should be concerned the notion that the state may 1987 receive and accept plea necessarily premised to be consequences reasonably at that time—and anticipated later, then, years those peremptorily change to the defendant’s consequences view, significant harm. In my state’s calculated infliction of retrospective such unpredictable consequences offends fundamental of fairness principles and therefore the due implicates clause. process

Defendant testified without contradiction that his of no contest had plea it; no virtually fine, at the legal time he entered consequences there was “no no sentence .... other admonition whatsoever.” Little did [n]o he know later, that seven years his decision not to contest that charge would into ripen a felony which, conviction for violating at the time his offense and Furthermore, was not even a plea, glimmer the legislative eye. the reasonably foreseeable consequences of such a plea rarely include anything approaching the magnitude and seriousness the consequence imposed by section 12021. Defendant here testified that his 1987 had plea no immediate practical six consequences. Yet later it years and auto- directly matically operated disable him from possessing firearms—a disability embodied statutory prohibition into a ripened term.17 prison 16A defendant waives an objection for failure advise of the consequences plea by McClellan, neglecting objection (People sentencing hearing. to raise the at the found, however, Cal.4th at Such a could not hardly objection waiver can where the ibid, (Cf. have been raised plea, patently time of the the case here. waived [error where defense proposed consequence easily had notice of and could objection have raised along sentencing].) with others at 17I note that the proceedings constitutional dubiousness of light such is cast in a still darker where, plea when the was in municipal entered court as Justice Arabian commented in Welch 802], Cal.Rptr.2d 5 Cal.4th 239 [19 851 P.2d “. . . defendants ,” frequently plead guilty summary probation and receive pleas counsel. . without . may always comply process entered with due safeguards. result, I would such a clause does not prohibit ex If the clause, fair its with guarantee fundamentally the due process conclude does so.18 procedures, 12021(c). of conviction under section the judgment

I would reverse Court was denied May for review Supreme petition Appellant’s 1997. consequence applies as well the law of unintended 18This case illustrates traditionally has been legislation. Penal Code section universally to ill-conceived prosecutors and defenders culpability, conjointly by utilized at the lowest totem of officers, not by plea trial was not worth the effort. Police dispose insignificant cases when lives, occasionally suffered convictions personal have immune to indiscretions their 12021(c), prosecuting authorities police and the enactment of section Upon section 240. having possessing instant felons virtue of problem of their officers become confronted possibility Military personnel police share with the course of their duties.

firearms in career-ending consequences. similar

Case Details

Case Name: People v. Mesce

Court Name: California Court of Appeal

Date Published: Feb 4, 1997

Citation: 60 Cal. Rptr. 2d 745

Docket Number: A071221

Court Abbreviation: Cal. Ct. App.