People v. Mesce

52 Cal. App. 4th 618, 60 Cal. Rptr. 2d 745, 97 Cal. Daily Op. Serv. 839, 97 Daily Journal DAR 1199, 1997 Cal. App. LEXIS 79

• Court: California Court of Appeal
• Decided: February 4, 1997
• Docket: A071221
• Status: Published

Opinions

Opinion

LAMBDEN, J.

Defendant Richard Canniff Mesce pleaded no contest to a charge of misdemeanor assault in 1987 and was consequently convicted. Effective 1993, Penal Code section 12021, subdivision (c), made it an offense to possess any firearm within 10 years after conviction of various misdemeanor offenses, including the type of assault previously committed by defendant. In the case before us defendant was convicted of violating this statute, among others. He contends the ex post facto clauses of the federal and state Constitutions protect him from prosecution under the statute and require reversal of his conviction for its violation. We disagree because we find the statute’s effect is not retroactive. In an unpublished portion of the opinion, we also reject defendant’s other challenges to his conviction.

Background

Defendant was charged with attempted murder (Pen. Code, §§ 664, 187; except as noted, unspecified references are to the Penal Code); assault with a deadly weapon, involving personal use of a firearm (§§ 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022.5), and unlawful possession of a firearm within 10 years of being convicted of a misdemeanor assault (§ 12021, subd. (c)).

The victim testified defendant fired shots at him with a revolver. The other witness testified she saw the victim running near her house while a man fired a rifle towards him. Defendant denied firing any shots and claimed to have been in a shed on his own property, at the local Coast Guard station or traveling by boat between those two locations. He also claimed on the day of the alleged shooting the victim had threatened to kill him and had, contrary to the allegations, actually fired shots at him.

The jury acquitted defendant of attempted murder but found him guilty of aggravated assault with a firearm and guilty of possession of a firearm by one previously convicted of a misdemeanor assault. The court denied probation and sentenced defendant to prison for a total term of seven years, including a two-year concurrent term for the firearms possession conviction. Defendant promptly appealed.

Discussion

I. The statute is not retroactive

An ex post facto law is one which later punishes an act done before the enactment of the law. The ex post facto law and its evil twin, the bill of attainder (legislation which purports to convict by decree and without the inconvenience of trial), have been anathema to the American legal system from its inception. Although courts traditionally refer to the ex post facto prohibition in the singular, actually two such proscriptions exist in the United States Constitution and a third in the California Constitution. (U.S. Const., art. I, § 9, cl. 3, § 10; Cal. Const., art. I, § 9.)

The effect of the ex post facto prohibition is to invalidate: “[(1)] Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [(2)] Every law that aggravates a crime, or makes it greater than it was, when committed. [(3)] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [(4)] Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” (Calder v. Bull (1798) 3 U.S. (3 Dali.) 386, 390 [1 L.Ed. 648, 650], italics omitted; Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715, 2719, 111 L.Ed.2d 30].)

The second and third of the foregoing categories are in contention here and, taken together, pose the question whether section 12021, subdivision (c), imposes additional punishment retroactively upon the defendant for his previous misdemeanor. (See Cummings v. Missouri (1866) 71 U.S. (4 Wall.) 277, 325-326 [18 L.Ed.2d 356, 363-364], as quoted in Weaver v. Graham (1981) 450 U.S. 24, 28 [101 S.Ct. 960, 963-964, 67 L.Ed.2d 17] [holding the ex post facto clause prohibits any law which “ ‘imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then proscribed’ ”]; Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [46 S.Ct. 68, 69, 70 L.Ed. 216], as quoted in Collins v. Youngblood, supra, 497 U.S. 37, 42 [110 S.Ct. 2715, 2719].)

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

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

An analogous question was posed and settled in People v. Mills (1992) 6 Cal.App.4th 1278 [8 Cal.Rptr.2d 310] (Mills) which upheld the 1989 amendment to section 12021, subdivision (a), which extended the previous ban of concealable firearms to make possession by a felon of any firearm a further felony. The court in Helmer v. Miller (1993) 19 Cal.App.4th 1565, 1571 [25 Cal.Rptr.2d 8], followed Mills and a line of older cases which upheld convictions despite similar ex post facto challenges (People v. Venegas (1970) 10 Cal.App.3d 814, 822 [89 Cal.Rptr. 103] [upholding 1965 amendments which lengthened the maximum sentence for firearm possession by a felon]; People v. James (1925) 71 Cal.App. 374, 378 [235 P. 81] (James) [rejecting a challenge to felon-in-possession law]; People v. Camperlingo (1924) 69 Cal.App. 466, 472 [231 P. 601] (Camper-lingo) [same]; cf. People v. McCloskey (1926) 76 Cal.App. 227, 229-230 [244 P. 930] [rejecting argument that felon-in-possession law infringed a vested property right]; People v. Smith (1918) 36 Cal.App. 88, 90 [171 P. 696] [upholding 1917 statute which criminalized carriage of concealed weapons in urban areas]).

In Mills, the court affirmed the defendant’s conviction for being a felon in possession of a shotgun even though at the time of his prior offense and sentencing, a convicted felon was barred only from carrying concealed firearms. The court adopted the California Supreme Court’s analysis in In re Ramirez (1985) 39 Cal.3d 931, 936-937 [218 Cal.Rptr. 324, 705 P.2d 897] (Ramirez), which held a prison inmate’s forfeiture of sentence credits for prison misconduct was solely the result of the later misconduct and not of the prior offense for which the sentence was being served; therefore, changes in the rules effecting such forfeitures did not violate the ex post facto clause. The Mills court quoted former Justice Lucas in Ramirez as follows: “It is true that the 1982 amendments apply to petitioner only because he is a prisoner and that he is a prisoner only because of an act committed before the 1982 amendments. Nonetheless, the increased sanctions are imposed solely because of petitioner’s prison misconduct occurring after the 1982 amendments became effective.” (Ramirez, supra, at p. 936; quoted in Mills, supra, 6 Cal.App.4th 1278, 1285.)

The Supreme Court in Ramirez reasoned the new statute only applied to the defendant because he was a convicted felon, a status he had achieved before the statute in contention became effective. Since the new statute applied only to an event occurring after its effective date, i.e., the defendant’s possession of a weapon after the statute became effective, the sanctioned event occurred after the effective date of the statute and the amendment was not retroactive. As stated by the Mills majority: “[T]he fact of his prior conviction only places him into a status which makes the new law applicable to him. The legal consequences of his past conduct were not changed—only a new law was applied to his future conduct.” (6 Cal.App.4th 1278, 1286.)

We find applying section 12021, subdivision (c), to defendant did not violate constitutional ex post facto principles because defendant was convicted based on conduct occurring after the effective date of the statute.

II. The statute does not punish the defendant for his original offense

Similar reasoning has been applied to statutes which impose heavier punishments upon offenders who have previously violated the law.

California cases have allowed the application of enhancements punishment based on previous convictions. In People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736] (overruled on different grounds in People v. Guerrero (1988) 44 Cal.3d 343, 355-356 [243 Cal.Rptr. 688, 748 P.2d 1150]), a serious-felony enhancement was based on a prior burglary conviction occurring before the enhancement was enacted, and the court stated: “No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for the enhancement was committed before the initiative passed. In the context of habitual criminal statutes, ‘increased penalties for subsequent offenses are attributable to the defendant’s status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.’ [Citation.]” (People v. Jackson, supra, 37 Cal.3d at p. 833; see also People v. Williams (1983) 140 Cal.App.3d 445, 448 [189 Cal.Rptr. 497]; People v. Dolliver (1986) 181 Cal.App.3d 49, 57 [225 Cal.Rptr. 920].)

Likewise, former section 12021, subdivision (a), the amendment which was in contention in Mills, supra, 6 Cal.App.4th 1278, withstood an ex post facto attack in James, supra, 71 Cal.App. 374. The court in James cited Camperlingo, supra, 69 Cal.App. 466, in which the court upheld a felon-in-possession conviction even though the felony of which the defendant had been convicted was committed prior to the passage of the act which created the crime of felon-in-possession. The Camperlingo court’s analysis (id., at pp. 470-473) was criticized by the dissent in Mills for not considering cases dealing with the “increase of disabilities, burdens or penalties previously imposed on or resulting from criminal acts for which defendant was previously convicted[.]” (Mills, supra, 6 Cal.App.4th 1278, 1298.)

Clearly not every law which merely “disadvantages” the defendant retrospectively is an ex post facto law. The Mills majority did not succumb to the confusion engendered by the United States Supreme Court’s use of the term “disadvantaged” in Weaver v. Graham, supra, 450 U.S. 24 as well as in two later decisions. The Mills dissent, however, and defendant in this case, have mistakenly contended retrospective “disadvantage,” such as a limitation on the right to possess a gun, is equivalent to punishment and therefore indicative of an impermissible ex post facto law. However, the United States Supreme Court has corrected the ambiguity created by its prior references to “disadvantage” by stating: “After Collins [supra, 497 U.S. 37], the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of‘disadvantage,’. . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” (California Dept, of Corrections v. Morales (1995) 514 U.S. 499, 506-507, fn. 3 [115 S.Ct. 1597, 1602, 131 L.Ed.2d 588, 595].)

The distinction is not always made in the cases between the terms “retrospective . . . [l]ooking back on, contemplating, or directed to the past,” and “retroactive . . . [influencing or applying to a period prior to enactment.” (American Heritage Diet. (3d ed. 1992) pp. 1541-1542.) It is a distinction which is not merely pedantic, since it leads to a description of what is permitted in a law contended to be ex post facto: looking to the past to inform the present, and also what is prohibited: acting presently to change the past. Accordingly, the question is not whether this convicted miscreant is presently denied the advantage of armaments, but rather whether the statute aims to change the punishment for the original crime. The former inquiry leads naturally to an equal protection argument long settled by cases allowing the Legislature to limit the application of laws to a uniform class of persons such as previously convicted felons. (People v. Dubose (1974) 42 Cal.App.3d 847 [117 Cal.Rptr. 235]; James, supra, 71 Cal.App. 374, 378-379.) The answer to the latter question must be negative.

As pointed out by the majority in Mills, “ ‘[s]ome ex post facto questions of the increased-punishment type have arisen in connection with the passage of habitual criminal laws, which imposed enhanced penalties for later offenses if the defendant has previously been convicted of one or more crimes. If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only for the new crime B, which was committed after the statute was passed. Similarly, it is permissible to define a crime as limited to certain conduct engaged in by persons who have heretofore been convicted of some other offense and to apply the statute to one whose earlier offense and conviction predated the enactment of this statute.’ [Citation.]” (Mills, supra, 6 Cal.App.4th 1278, 1286, quoting 1 LaFave & Scott, Substantive Criminal Law (1986) § 2.4, p. 139.)

The Mills dissent assumes any increased disability and burden, i.e., the inability to own a firearm, is a further punishment of the defendant’s prior conduct, without acknowledging the critical question of whether the statute creates a new punishment for the prior offense or, rather, prohibits to an identifiable class of persons the subsequent conduct of owning a gun by reason of their status as convicted offenders arguably more likely to misuse firearms. The distinction presented by a statute prohibiting such conduct by convicted offenders is the same one presented by enhancements of punishments imposed on those convicted of future and distinct offenses; in both instances the defendants have by their proven conduct separated themselves into an identifiable class to which the Legislature’s police powers may apply, so long as persons similarly situated are treated equally. (See In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549] regarding equal protection.)

The instant case is not distinguishable from Mills, supra, 6 Cal.App.4th 1278, because there is no reasonable distinction between subdivisions (a) and (c) of section 12021 which would invalidate the reasoning of the opinion. The Mills court has itself so concluded in In re Evans (1996) 49 Cal.App.4th 1263 [57 Cal.Rptr.2d 314] (Evans) (conviction reversed on equal protection grounds; the court found unconstitutional the classification of those permitted relief from the operation of section 12021, subdivision (c)).

In a late-filed letter brief, defendant attempts to rely upon Evans, supra, 49 Cal.App.4th 1263 to contend his “inability” to petition for restoration of the right to possess a firearm, and thereby avoid prosecution under section 12021, subdivision (c), must invalidate his conviction under said section. We first note the Evans court had the opportunity to invalidate the entire statute but chose instead to interpret the statute expansively. In the instant case there is no evidence of any such petition nor, in fact, any language contained in section 12021, subdivision (c)(3), which would have prevented this defendant from seeking relief by such a petition within the statutory time limits.

Accordingly, even assuming the argument to have been timely raised, which is not the case, we reject defendant’s contention his conviction was void as a violation of the equal protection clause. First, there is no evidence he did petition for restoration of his right to bear arms pursuant to subdivision (c)(3) of section 12021, as did the defendant in Evans, supra, 49 Cal.App.4th 1263. Second, this defendant was not prevented from making such a petition under the language of subdivision (c)(3), assuming he even knew the statute and its provision for relief existed. Third, the Evans court correctly used the remedy of expanding the inclusionary provision of the statute permitting petition for restoration of the right to possess firearms rather than nullifying the entire statute. Defendant appears to argue but for his “prevention” from petitioning for restoration of the right to possess firearms, his right to do so would have been restored and he could not have been found in criminal violation of the statute. This is speculative at best and certainly unpersuasive.

III., IV.

*

Conclusion

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

Haerle, Acting P. J., concurred.

See footnote, ante, page 618.