California Correctional Peace Officers Ass'n v. Department of Corrections

85 Cal. Rptr. 2d 797, 72 Cal. App. 4th 1331, 99 Daily Journal DAR 6047, 99 Cal. Daily Op. Serv. 4739, 1999 Cal. App. LEXIS 590

• Court: California Court of Appeal
• Decided: June 16, 1999
• Docket: C029712
• Status: Published

Opinions

Opinion

BLEASE, J.

This is an appeal from a summary judgment in an action seeking a declaration that James Blanchard, a correctional officer, is not prohibited from possessing a firearm under Penal Code section 12021.¹ Blanchard, a correctional officer for 15 years, will lose his employment as a peace officer if he cannot possess a firearm.

Section 12021, subdivision (a), declares it a felony to own or possess a firearm if convicted of a felony or of specified misdemeanors, including, by reference to section 12001.6, subdivision (b), section 246. Blanchard was convicted 20 years ago of a misdemeanor violation of section 246. It was on this ground the trial court denied relief.

Plaintiff California Correctional Police Officers Association (CCPOA), Blanchard’s union, appeals contending a later amendment to subdivision (c) of section 12021 explicitly restricts the ownership or possession of a firearm to a 10-year period following a misdemeanor conviction of section 246, under which Blanchard qualifies. We agree.

We resolve the irrefragable conflict between subdivisions (a) and (c) of section 12021 under the rule the most recently enacted language controls, by giving effect to the later amendment of subdivision (c). We will modify the judgment to declare that Blanchard’s conviction is subject to the 10-year firearm possession ban provision of section 12021, subdivision (c).

Facts and Procedural Background

The matter was resolved by a summary judgment on the following pertinent² stipulated facts.

Blanchard has been a correctional officer for 15 years. In September 1978 he suffered a misdemeanor conviction of discharging a firearm at an inhabited dwelling under section 246, apparently arising out a domestic dispute (see fn. 2, post). In October 1997, he was temporarily reassigned to non-peace-officer duties, pursuant to a review by the Department of Corrections of employees potentially subject to a firearms prohibition under the recent amendment of the federal firearms statute.

The trial court ruled that Blanchard was subject to a permanent ban against possession of a firearm under section 12021, subdivision (a). It reasoned that “[ajlthough Penal Code § 246 is also one of the offenses enumerated in Penal Code § 12021(c)(1), which imposes a ten year firearms ban, subsection (c), expressly excludes offenses enumerated in subsection (a) from its provisions. The Court finds that a conviction under Penal Code § 246 remains subject to a permanent firearms ban under State law. . .

CCPOA appeals from this portion of the judgment.

DISCUSSION

We begin by repeating a caveat from a recent apposite opinion.

"This case concerns itself solely with the construction of Penal Code sections 12021 and 12021.1. At first blush, the statutes seem impenetrable. Reading them is hard, writing about them arduous, reading about them probably downright painful. The similarity of the section numbers and the fact each section has a particular subdivision which requires discussion in conjunction with other similarly denominated subdivisions makes for tough sledding. As Alfred North Whitehead wrote of rationalism, the effort is, itself, `an adventure in the clarification of thought.' (Whitehead, Process and Reality (1929) pt. I, ch. I, § 3.) The reader who is not inclined to such adventure and who is fortunate enough not to confront these statutes is probably well advised to forego this opinion." (Rash v. Lungren (1997) 59 Cal.App.4th 1233, 1235 [69 Cal.Rptr.2d 700].)

The question is the proper construction of section 12021. The problem arises because an amendment to section 12021, subdivision (c) in 1994 added section 246 to the list of misdemeanor convictions subject to its 10-year ban. (Stats. 1994, First Ex. Sess. 1994, ch. 33, § 3.5, eff. Nov. 30, 1994.)³

We commence with the text. (See, e.g., Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 480 [191 Cal.Rptr. 893].) In this case, we look to the text of section 12021 as it stood immediately after the enactment of the pertinent 1994 amendment, with amendment additions in italics and section 246 in bold:

"(a)(1) Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6,[⁴] or who is addicted to the use of any narcotic drug, who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

“(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 244.5, 245, 245.5, 246, 246.3, 247, 273.5, 273.6, 417, 417.1, 417.2, 417.6, 626.9, 646.9, or 12023, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12320 or 12590, or Section 8101 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in the state prison or in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.”

Alas, as to the offense in this case, unlike the offense in Rash v. Lungren, supra, 59 Cal.App.4th 1233,⁵ the text of subdivision (a) of section 12021 as well as section 12021.1, subdivisions (a) and (b)(27)⁶ cannot be harmonized with the subsequently enacted text of subdivision (c) of section 12021: There is an irrefragable conflict. The misdemeanor offense denominated by section 246 is explicitly within the texts of both the newly added text of section 12021, subdivision (c) and subdivision (a) (by virtue of its reference to section 12001.6, subdivision (b)). There is no way to give effect to all the words of section 12021; either “[subdivision] (b) [of Section 12001.6]” must be stricken from subdivision (a) of section 12021 or “[Section] 246” must be stricken from subdivision (c). The same conflict exists between subdivision (c) of section 12021 and section 12021.1, subdivisions (a) and (b)(27).

CCPOA, citing People v. Bustamante (1997) 57 Cal.App.4th 693, 701 [67 Cal.Rptr.2d 295], argues that this semantic discord should be resolved under the rule that where two laws on the same subject, passed at different times, are inconsistent with each other, the later act prevails. We agree that this rule governs the conflict between section 12021 and section 12021.1. But since the question as to the meaning of the language of section 12021 concerns the effect of inconsistent portions of an amended statute, Donlon v. Jewett (1891) 88 Cal. 530, 535 [26 P. 370], is more apposite: “If, however, it is found that there is an irreconcilable conflict between the amendment and some portion of the old statute that has been preserved and republished in the revision, so that no effect can be given to one without destroying the operation of the other, and there is nothing else to indicate the probable intention of the legislature, it might be necessary to hold that full effect is to be given to the amendment and the re-enactment of the conflicting portions of the original act treated as a mistake.” (See also People v. Saffell (1946) 74 Cal.App.2d Supp. 967 [168 P.2d 497]; 1A Sutherland, Statutory Construction (5th ed. 1993) §§ 23.12, p. 363, 22.34, p. 297.)

The state argues the two subdivisions of section 12021 are only “superficially inconsistent.” Our dissenting colleague takes the same tack, urging that the conflict can be resolved by treating the introductory phrase “Except as provided in subdivision (a) . . .” (§ 12021, subd. (c)(1)) as a legislative direction to resolve the conflict by giving effect to the text of subdivision (a) and by making the newly added text of subdivision (c) disappear as “surplusage.” This requires attribution of a senseless act to the Legislature.

The language “[e]xcept as provided in subdivision (a) . . .” has an evident and sensible purpose, to govern partial overlap, e.g., to ensure that in a case where a person convicted of a misdemeanor listed in subdivision (c) of section 12021 also stands convicted of a felony or is addicted to the use of a narcotic drug, the misdemeanor conviction does not result in the lifting of the prohibition that would otherwise apply under subdivision (a). This purpose to harmonize the application of the two subdivisions in situations of partial overlap fully accounts for the phrase. The suggestion the phrase was also meant to excise entirely language added to subdivision (c) requires the belief the Legislature intentionally engages in semantic horseplay, that the Legislature would, at the moment of enactment, excise that which it had just enacted.⁷

The dissent characterizes the effect of this artificial usage of “[ejxcept as provided in subdivision (a) . . .’’as honoring a plain reading of the statute. There is nothing plain about a meaning that has the speaker engaging in double talk; one does not honor speech by giving it a senseless construction.

Nor is it sensible to say this verbal maneuver avoids a conflict between the language of the two subdivisions of section 12021. Calling the words added in subdivision (c) “surplusage”⁸ does not avoid a conflict, it resolves it by choosing to give effect to the words of one of the conflicting branches of the semantic dilemma. The problem presented by the conflict; in the language of section 12021 and section 12021.1 cannot be papered over by semantic contortions.

The state submits that giving this peculiar effect to the introductory proviso to section 12021, subdivision (c), “[ejxcept as provided by subdivision (a) . . .” harmonizes the statute. However, giving such effect to the exception would nullify the explicit addition of section 246 to section 12021, subdivision (c). Harmony gives a role to both voices; silencing one is not harmony, it is suppression.

The state argues that repealing the inclusion of section 246 in section 12021, subdivision (c) is good policy, because it sensibly groups that offense with others for which the more stringent sanction under section 12021, subdivision (a) is applied. However, the obverse is also true; section 12021, subdivision (c) also appears to sensibly group section 246 with other similar misdemeanor offenses. However, we have no occasion to carefully examine the proffered logical grouping. This is not a case of statutory ambiguity, which we may resolve by selection of one candidate application from among several semantically permissible applications based upon the probable public policy of the Legislature. In this case, two conflicting statements of public policy have been uttered by the Legislature. Our role is to ascertain which is superior and which must give way.

The dissent argues, in effect, that we should examine the legislative history of the several enactments to determine whether the Legislature intended an implied repeal of the permanent firearm ban under section 12021, subdivision (a) and section 12021.1. The underlying premise proceeds from the unfortunate terminology of “implied repeal.” It suggests there is a judicial power actually to repeal a statute. That is not the case. “Repeal” applies “only to acts which effect change in the legal system primarily by the mode of overtly and explicitly abrogating provisions of prior statute law.” (1A Sutherland, Statutory Construction, supra, § 23.01, p. 320, italics added; hereafter Sutherland.) Hence, “implied repeal” is, strictly speaking, an oxymoron, since it arises out of legislative ignorance of the provision of the prior statute law that is abrogated. The Active mind of the Legislature cannot intend to abrogate a statutory provision of which it is unaware.

This presents a puzzle. If legislative intent is primary in the interpretation of statutes, how do we get unintended implied repeals? We recently addressed a related problem concerning “implied amendment.”

“Failing an amendment, the state seeks refuge in the doctrine of amendment by implication. The purpose of the doctrine is to resolve conflicts in enactments of equal legal status, not to provide another means of ‘amendment.’ It expresses the rule that a later enactment may prevail over an earlier, conflicting enactment of the same legal status in respects the conflict. The rule does not apply where the later enactment is legally subordinate to the earlier enactment, that is, where a conflict is ruled out by the superior legal status of the earlier enactment.” (American Lung Assn. v. Wilson (1996) 51 Cal.App.4th 743, 752 [59 Cal.Rptr.2d 428] (conc. opn. of Blease, Acting P. J., with Scotland, J. cone, therein).)

“Implied repeal” is not another means by which to repeal a statute. Like “implied amendment,” “implied repeal” is a term employed in the resolution of conflicts in enactments of equal legal status. (See Sutherland, supra, § 23.09, p. 337.) The “presumption” against implied repeals enjoins us to reconcile apparent contradictions if that is reasonably possible.

The only role for discerning legislative intent lies in ascertaining the respective meanings of the earlier and later enactments to determine if those meanings present an unavoidable conflict that requires, in enforcing the most recent expression of legislative will, the suppression of the older expression of legislative will.⁹ The dissent has it backwards in asserting its approach is constitutionally compelled. The rule that the later enactment prevails is an aspect of judicial deference to legislative supremacy.

The reason for judicial restraint is that the cure is worse than the disease. Ignoring the most recent enactment or curing a perceived omission or inclusion beyond the bounds permitted by interpretation, a judicial temptation of the first order, encroaches on the legislative power. If the Legislature has made a mistake, it has the (legislative) means to correct the mistake. And it does. As anyone familiar with the legislative process knows, the Legislature routinely passes legislation to clean up past mistakes. That is the legislative function. It should not be transferred to the judicial branch, which lacks that power.

The amendment of section 12021 providing that a misdemeanor conviction under section 246 warrants the less stringent prohibition under subdivision (c) of section 12021 is the most recent expression of the Legislature. Under the authorities previously cited, the most recent expression prevails. The inclusion of section 246 in subdivision (c) of section 12021 must be given effect, in the only way that it can be given effect, by reading it as superior to the entirely inconsistent inclusion of subdivision (b) of section 12001.6 in subdivision (a) of section 12021 and in section 12021.1, subdivision (b)(27).

Disposition

Subdivision (1) of the judgment is stricken. Subdivision (2) of the judgment is modified to add the following at the end of the present text: “The same is true as to Officer Blanchard. His expunged misdemeanor conviction in 1978 under Penal Code Section 246 also falls within the provisions of § 12021, subdivision (c)(1).” As modified, the judgment is affirmed. CCPOA shall recover its costs of this appeal.

Scotland, P. L, concurred.

1 A reference to a section is to the Penal Code unless otherwise stated.

2 The CCPOA action was framed to address questions concerning a ban on the possession of firearms by persons convicted of “a misdemeanor crime of domestic violence” imposed by an amendment to a federal statute, 18 United States Code section 922(g)(9). The principal issue in the CCPOA suit concerned the applicability of an exception in the federal law for expunged convictions. (18 U.S.C. § 921(a)(33)(B)(ii).) It provides, in pertinent part: “(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged . . . unless the . . . expungement... expressly provides that the person may not. . . possess . . . firearms.” CCPOA contended the 10-year prohibition for firearms possession in section 12021.5, subdivision (b), operated to lift the federal ban after an expungement and lapse of that period. CCPOA prevailed on that point in the trial court and no appeal is taken nor any issue raised as to that component of the judgment. Accordingly, we have no occasion to address the federal statute.

3 The amendment adding misdemeanor violations of section 246 to section 12021, subdivision (c), was enacted subsequent to sections 12001.6, 12021, subdivision (a), and 12021.1, subdivisions (a) and (b)(26), which jointly were enacted in 1982 (Stats. 1982, ch. 136, §~ 5, 6 & 7, pp. 445-447) and subsequent to the amendment by which section 12021.1, subdivision (b)(26) became subdivision (b)(27) (Stats. 1993, ch. 612, § 9, eff. Sept. 30, 1993, operative Jan. 1, 1994).

4 Section 12001.6, in pertinent part, is as follows.

“As used in this chapter, an offense which involves the violent use of a firearm includes any of the following:

“(b) A violation of Section 246.”

5 In Rash v. Lungren, supra, 59 Cal.App.4th at pages 1235-1236, the plaintiff, Rash, was convicted of a misdemeanor violation of section 245, subdivision (a)(2), assault with a firearm. He claimed the offense came within the 10-year washout provision of section 12021, subdivision (c), which referred only to section 245 without specification of its subdivisions. Like this case, the offense was enumerated in section 12001.6, subdivision (a), and thus within the unlimited prohibition of section 12021, subdivision (a)(1). Rash argued there was a conflict between subdivision (a)(1) (as well as section 12021.1, subdivisions (a) and (b)(27)) and subdivision (c). However, Rash found no conflict because some misdemeanor violations of section 245 specified in its subdivisions are not within subdivision (a), and those alone (i.e., “[e]xcept as provided in subdivision (a)”) are within subdivision (c).

6 Section 12021.1, in pertinent part, is as follows.

“(a) Notwithstanding subdivision (a) of Section 12021, any person who has been previously convicted of any of the offenses listed in subdivision (b) and who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. . . .

“(b). . . [H ... [T (27) Any offense enumerated in subdivision (a), (b), or (d) of Section 12001.6.”

7 This is a species of linguistic nonsense, involving a classic problem of self-reference, an enduring source of paradox; thus, the Epimenides paradox, the statement “All Cretans are liars” said by a Cretan. (See generally, Hofstadter (1979) Godel, Escher, Bach: an Eternal Golden Braid; and note Russell’s paradox, the class of all classes is a member of itself only if it isn’t (id. at pp. 21-22).

8 “Surplusage” in a legal instrument is matter that is unnecessary to the meaning of the instrument and which therefore may be ignored or rejected. (See, e.g., Black’s Law Diet. (6th ed. 1990) p. 1443.) The inclusion of section 246 in subdivision (c) of section 12021 is anything but surplusage.

9 The following passage in Sutherland illustrates the limited usage of intent in this context.

“[I]n the process of construing a statute the intent of the legislature is always of prime importance. Where there is an ambiguity in the statute, the legislative intent is the source of the compromise, but where a conflict is readily seen by an application of the later enactment in accord with that intent, it is clear that the later enactment is intended to supersede the existing law. The language used by the courts will usually stress the conflict rather than the legislative intent.” (Sutherland, supra, § 23.09, p. 338.)