People v. ShearPeople v. Shear
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- Before:
- Sims
Opinion
— A jury convicted defendant Mark Russell Shear of being a convicted felon in possession of a firearm (
Defendant contends that reversal is required because: (1) It was not shown beyond a reasonable doubt that the acts giving rise to his Arizona conviction would have been a crime, much less a felony, if committed in California; and (2) pursuant to the provisions of an Arizona statute, his right to possess a
firearm in Arizona had been fully restored as of the date of the current offense, a “determination” by a sister state which California must honor under the full faith
We disagree with these contentions and shall affirm the judgment.
Facts
The Arizona conviction.
In May 1989, defendant pleaded guilty in Maricopa County (Arizona) Superior Court to aggravated assault (
Prosecution case.
On July 26, 1997, members of the Butte County Interagency Narcotics Task Force searched defendant’s residence pursuant to a warrant. They found a loaded .25-caliber semiautomatic handgun on top of a high kitchen cabinet, about six inches below the ceiling. The weapon was concealed and not visible from below. The officer who seized it did not recall seeing any dust on it.
Defendant voluntarily talked to the officers. (The jury heard a tape of the relevant portion of his statement.) He first denied and then admitted that the gun was his. He said he had forgotten it was there; according to him, it had been there as of a prior search in October 1996. He admitted he had been convicted of a felony in Arizona and knew he was not supposed to have the gun. He did not say that the gun belonged to or was left there by anyone else.
During the 1996 search of defendant’s residence officers found a rifle. They warned him then that he could not legally possess any firearm. He answered that “his rights were restored in Arizona.”
Defense case.
Testifying on his own behalf, defendant stated that his father, who owned the residence defendant had lived in since 1995, also owned the handgun. Defendant did not put it where it was found and did not know it was there.
According to defendant, the officers executed the search warrant at 6:00 a.m., waking him. He was still confused and sleepy when he talked to them. He said the gun was his because he knew it was his father’s gun and he had seen it before; he just didn’t know it was up on top of the cabinet. He tried to say that it was actually his father’s, but never got the chance.
Defendant testified that the police warned him during the 1996 search that he could not legally possess firearms, but that the officer who said that “was not positive. She didn’t positively say that I couldn’t.” The rifle they found in that search was a family heirloom given as a present to his seven-year-old son.
Defendant admitted that he had pleaded guilty to a felony in Arizona, but asserted that his plea agreement included a provision that successful probation would restore all his rights.
Discussion
I
Defendant contends that the Arizona felony of which he was convicted would not be a felony in California, because aggravated assault may be committed in Arizona merely by intentionally placing another person in “reasonable apprehension of imminent physical injury” with the use of “a deadly weapon or dangerous instrument” (
Defendant’s contention that
In People v. Lang (1989) 49 Cal.3d 991 [264 Cal.Rptr. 386, 782 P.2d 627], our Supreme Court, construing a number of penal statutes dealing with prior out-of-state felony convictions, held: “In the absence of limitation, a reference to ‘prior felony convictions’ is deemed to include any prior conviction which was a felony under the laws of the convicting jurisdiction.” (Id. at pp. 1038-1039.) Among the decisions the court cited with approval to exemplify this rule is Domenico. (Id. at p. 1039.)
In light of
Domenico
and
Lang,
we conclude that defendant may not attack his conviction for violation of
II
Deféndant contends: (1) under the full faith and credit clause of the United States Constitution, California must give full faith and credit to Arizona’s alleged restoration of his right to possess firearms in that state, and (2) doing so precludes his prosecution by California for possessing a firearm in this state. We conclude that even assuming an Arizona statute has restored defendant’s right to possess a firearm in that state, the full faith and credit clause does not bar California from prosecuting defendant under
The record does not make clear whether defendant’s right to possess a firearm in Arizona has actually been restored; however, for purposes of this appeal we shall presume it was. Prior to 1988, Arizona law provided: “Upon completion of the term of probation, or upon absolute discharge from imprisonment, and upon the completion of payment of any fine or restitution
imposed, any person who has not previously been convicted of any other felony shall automatically be restored any civil rights which were lost or suspended by the conviction.” (Ariz. Rev. Stat. former § 13-812 [now § 13-912, subd. A.] (1989).)
3
Defendant committed the Arizona offense on August 29, 1988. On June 22, 1988, an amendment to the Arizona statute was filed in the office of the Arizona Secretary of State which required a felon to apply to the court in order
As noted, the full faith and credit clause requires a state to give effect to the “public acts, records, and judicial proceedings” of sister states. (
In Clapper, the court stated: “[T]he full faith and credit clause does not require the enforcement of every right conferred by a statute of another state. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy [citations]; or because it fails to provide procedure appropriate to its determination [citations]; or because the enforcement of the right conferred would be obnoxious to the public policy of the forum [citations]; or because the liability imposed is deemed a penal one [citations].” (286 U.S. at p. 160 [52 S.Ct. at p. 576, 76 L.Ed. at p. 1035], italics added.)
In Alaska Packers Asso., the court carried this analysis further. The issue was whether the workers’ compensation law of Alaska (then a territory) or that of California governed a claim by an employee of a California business who had sustained a work-related injury while on assignment in Alaska. The California Supreme Court upheld an award to the employee by the California Industrial Accident Commission under California law. The United States Supreme Court affirmed that judgment. (294 U.S. at pp. 538-539, 550 [55 S.Ct. at pp. 519-520, 525, 79 L.Ed. at pp. 1047, 1053].)
As to full faith and credit, the court first found that the workers’ compensation laws of the two jurisdictions conflicted materially and that both claimed to be compulsory and exclusive on the facts presented.
(Alaska Packers Asso., supra,
294 U.S. at p. 544 [55 S.Ct. at p. 522, 79 L.Ed. at p. 1050].) The court then gave the following general analysis of the problem: “It has often been recognized by this Court that there are some limitations upon the extent to which a state will be required by the full faith and credit clause to enforce even the judgment of another state, in contravention of its own statutes or policy. [Citations.] [¶]
In the case of statutes, the extra-state effect of which Congress has not prescribed, where the policy of one state comes into conflict with that of another, the necessity of some accommodation of the conflicting interests of the two states is still more apparent. A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.
Unless by force of that clause a greater effect is thus to be given to a state statute abroad than the clause permits it to have at home, it is unavoidable that this Court determine for itself the extent to which the statute of one state may qualify or deny rights asserted
Applying these principles, the court found that California’s interest in the present matter outweighed Alaska’s: “The enactment of the present statute of California was within state power and infringes no constitutional provision. Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute of another state by the full faith and credit clause, assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. . . . [¶] . . . [California’s] interest is sufficient to justify its legislation and is greater than that of Alaska, of which the employee was never a resident and to which he may never return. Nor should the fact that the employment was wholly to be performed in Alaska, although temporary in character, lead to any different result. It neither diminishes the interest of California in giving a remedy to the employee, who is a member of a class in the protection of which the state has an especial interest, nor does it enlarge the interest of Alaska whose temporary relationship with the employee has been severed.” (Alaska Packers Asso., supra, 294 U.S. at pp. 547-550 [55 S.Ct. at pp. 524-525, 79 L.Ed at pp. 1052-1053].)
Finally, the court reiterated the rule of Alaska Packers Asso., in Pacific Ins. Co., supra, 306 U.S. 493 [59 S.Ct. 629, 83 L.Ed. 940], Again the court had to decide whether the California Supreme Court correctly upheld a California workers’ compensation award in the face of a claim that a foreign jurisdiction’s law governed; however, in this case the employee worked for a foreign (Massachusetts) corporation and suffered injury while on assignment in California. (Pacific Ins. Co., supra, at pp. 497-498 [59 S.Ct. at pp. 630-631, 83 L.Ed. at pp. 942-943].) Again the court affirmed the California court’s judgment.
The court first found, as in
Alaska Packers Asso.,
that California and Massachusetts workers’ compensation laws conflicted materially and both claimed exclusivity.
(Pacific Ins. Co., supra
306 U.S. at p. 499 [59 S.Ct. at pp. 631-632, 83 L.Ed. at p. 943].) The court then held that California law should control: “To the extent that California is required to give full faith and credit to the conflicting Massachusetts statute it must be denied the right to apply in its own courts its own statute, constitutionally enacted in pursuance of its policy to provide compensation for employees injured in their employment within the state. It must withhold the remedy given by its own statute to its residents by way of compensation for medical, hospital, and nursing services rendered to the injured employee, and it must remit him to Massachusetts to secure the administrative remedy which that state has provided. We cannot say that the full faith and credit clause goes so far. [¶] While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states,
the very nature of the federal union of states, to which are reserved some of the attributes of
sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.
. . . [?] . . .
The analysis developed in this line of cases is now the settled doctrine of the United States Supreme Court in applying the full faith and credit clause to conflicts of state laws in general. (Baker v. General Motors Corp. (1998) 522 U.S. 222, 230-232 [118 S.Ct. 657, 662-663, 139 L.Ed.2d 580, 590-591]; see Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 818-819 [105 S.Ct. 2965, 2978, 86 L.Ed.2d 628, 646] [forum state may choose its own law despite full faith and credit clause, provided state has “ ‘significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair’ ”]; see generally, Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception (1997) 106 Yale L.J. 1965, 1976-1978 [Supreme Court’s analysis reduces full faith and credit clause to a mere screening device as to state laws]; Gardbaum, New Deal Constitutionalism and the Unshackling of the States (1997) 64 U. Chi. L.Rev. 483, 561-563 [Supreme Court’s analysis renders forum state’s prima facie right to choose its own law virtually irrebuttable despite full faith and credit clause].)
Understandably, the California courts have adopted the United States Supreme Court’s analysis. (Hall v. University of Nevada (1977) 74 Cal.App.3d 280, 283, 284-285 [141 Cal.Rptr. 439], affd. sub nom. Nevada v. Hall (1979) 440 U.S. 410 [99 S.Ct. 1182, 59 L.Ed.2d 416] [refusing to apply Nevada statute waiving sovereign immunity for personal injury but limiting waiver to $25,000 per claimant]; see State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1562 [29 Cal.Rptr.2d 909); see generally, 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 23-26, pp. 68-71.)
In light of the above, defendant’s full faith and credit clause argument must fail. Section 12021(a)(1) deals with “ ‘a subject matter concerning which [California] is competent to legislate.’ ” (Baker v. General Motors Corp., supra, 522 U.S. at p. 232 [118 S.Ct. at p. 663, 139 L.Ed.2d at p. 592], quoting Pacific Ins. Co., supra, 306 U.S. at p. 501 [59 S.Ct. at p. 632, 83 L.Ed. at p. 944].) It is “the expression of [California’s] domestic policy, in terms declared to be exclusive in its application to persons and events within the state.” (Pacific Ins. Co., supra, 306 U.S. at pp. 502-503 [59 S.Ct. at p. 633, 83 L.Ed. at p. 945].) California’s “significant contact” with defendant, a California resident, creates a “ ‘state interest[], such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” (Phillips Petroleum Co. v. Shutts, supra, 472 U.S. at p. 818 [105 S.Ct. at p. 2978, 86 L.Ed.2d at p. 646].)
Moreover, California’s enforcement of the right conferred by the Arizona statute would be “obnoxious to the public policy of the forum.” {Clapper, supra, 286 U.S. at p. 160 [ 52 S.Ct. at p. 576, 76 L.Ed. at p. 1036].) There can be few more significant public policies of this state than that of protecting the safety of its citizens by barring convicted felons, persons who have proved unfit to be entrusted with firearms, from possessing them. “The purpose of [section 12021] is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes. [Citation.] Due to the potential for death or great bodily injury from the improper use of firearms, public policy generally abhors even momentary possession of guns by convicted felons who, the Legislature has found, are more likely to misuse them.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038 [48 Cal.Rptr.2d 877].)
Arizona, on the other hand, has no current contact with defendant. Nor does it have any discernible interest in “projecting] its laws across state lines so as to preclude [California] from prescribing for itself the legal consequenceQ” of possession of firearms by a convicted felon in California. (Pacific Ins. Co., supra, 306 U.S. at pp. 504-505 [59 S.Ct. at p. 634, 83 L.Ed. at p. 946].)
The full faith and credit clause does not preclude California from carrying out its public policy of prohibiting convicted felons within its borders from possessing firearms merely because defendant could lawfully possess firearms in Arizona.
Disposition
The judgment is affirmed.
Morrison, J., and Kolkey, J., concurred.
Appellant’s petition for review by the Supreme Court was denied July 28, 1999.
Notes
Defendant raised both contentions before trial by means of a motion to withdraw his plea, to demur, and to dismiss the complaint. After the trial court denied the motion, defendant filed a petition in this court for writ of mandate or prohibition, raising the same contentions. We summarily denied the petition.
We take judicial notice of all relevant provisions of Arizona law. (
In entering his plea, defendant avowed that he had no prior felony convictions.