OPINION
Jose Angel Rappard appeals from a judgment pronounced upon the revocation of the probation previously granted him following his conviction (without judgment thereupon) of being an alien in possession of a concealable firearm and sentencing him for the offense. (1) This
judgment is a final judgment of conviction and therefore appealable. (Pen. Code, § 1237, subd. 1; People v. Delles,69 Cal.2d 906, 908-909 [73 Cal.Rptr. 389, 447 P.2d 629].)
The sole question presented for decision is whether the statutory prohibition of aliens from owning or possessing concealable firearms (Pen. Code, § 12021, subd. (a)1) constitutes a denial of equal protection of the law under the United States and California Constitutions. (See U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 11, 21.)
(2) It is well settled that the protection afforded by the Fourteenth Amendment's prohibition against a state's denial of equal protection of the law to "any person" within its jurisdiction extends to aliens as well as citizens of the United States. (See Graham v. Richardson, 403 U.S. 365, 371 [29 L.Ed.2d 534, 541, 91 S.Ct. 1848].) (3) Since classifications based upon alienage, like those predicated upon nationality or race, are inherently suspect and subject to close judicial scrutiny (id. at p. 372 [29 L.Ed.2d at pp. 541-542]; Rafaelli
v. Committee of Bar Examiners, 7 Cal.3d 288, 292 [101 Cal.Rptr. 896, 496 P.2d 1264]) we must invoke the following strict standard when reviewing a discriminatory statute based upon alienage: "`Not only must the classification reasonably relate to the purposes of the law, but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest.' (Fns. omitted.)" (Raffaelli v. Committee of Bar Examiners, supra,
7 Cal. 3d at pp. 295-296, quoting Purdy Fitzpatrick v. State ofCalifornia, 71 Cal.2d 566, 579 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194].)
The People apparently contend that this statute is the necessary means of promoting the compelling state interest of public safety. They predicate this contention on the proposition that the possession of concealable firearms by aliens is inherently dangerous to public safety. This proposition, however, has been rejected by the California courts, which have recognized that there are no rational grounds for believing that all residents who are not also citizens are ipso facto uncommitted to peaceful and lawful behavior. (See, e.g., Raffaelli v.Committee of Bar Examiners, supra, 7 Cal. 3
d at p. 298.) "It is common knowledge that several million aliens are living in this country and that the vast majority are peaceful and law abiding. Undoubtedly, many are serving or have children serving in the armed forces. Consequently, to categorically hold that every alien who is intentionally in possession of a concealable weapon, regardless of the reason, is guilty of an offense inherently dangerous to human life . . . would manifestly lead to unjust and even absurd results. . . . [A] person does not . . . show a tendency toward crime simply because he is not a citizen of this country." (People v.Lovato, 258 Cal.App.2d 290, 293, 296 [65 Cal.Rptr. 638]; see also Raffaelli v. Committee of Bar Examiners, supra, 7 Cal.3d at p. 298, and People v. Satchell, 6 Cal.3d 28, 38-39 [98 Cal.Rptr. 33, 489 P.2d 1361], approving the quoted reasoning ofLovato.)
(4) In short, the classification of the statute — alienage — has no reasonable relationship to the threat to public safety which Penal Code section 12021 was ostensibly designed to prevent. Any classification which treats all aliens as dangerous and all United States citizens as trustworthy rests upon a very questionable basis. (Cf. Purdy Fitzpatrick v. State ofCalifornia, supra, 71 Cal.2d 566, 582.) We conclude, therefore, that the People have not sustained their burden of establishing that the classification — based as it is upon the suspect factor of alienage — not only promotes a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose. (See Raffaelli v. Committeeof Bar Examiners, supra, 7 Cal.3d at p. 301.) Classification based upon alienage, as Justice Mosk said, ". . . is the lingering vestige of a xenophobic attitude which . . . should now be allowed to join those [other] anachronistic classifications among the crumbled pedestals of history." (Id. at p. 291.)
The People and our dissenting colleague rely, nevertheless, upon In re Rameriz, 193 Cal. 633 [226 P. 914, 34 A.L.R. 51], a 1924 California Supreme Court decision which upheld this same statute against an equal protection challenge. This case is not controlling for two reasons. First, as the People admit, some of the grounds upon which Rameriz' conclusion of constitutionality rested have been explicitly rejected in Raffaelli as valid grounds for distinguishing between citizens and aliens. (CompareIn re Rameriz, supra, at p. 645 with Raffaelli v. Committeeof Bar Examiners, supra, 7 Cal.3d at pp. 296-300.) Second, recent developments in the law of equal protection, confirmed inTakahashi v. Fish Comm'n., 334 U.S. 410 [92 L.Ed. 1478, 68 S.Ct. 1138], dictate that a stricter standard of judicial review than the permissive rational basis test used in Rameriz
be applied to classifications based upon the suspect factor of alienage.2 (See Purdy Fitzpatrick v. State ofCalifornia, supra, 71 Cal.2d 566, 582; see also, Graham v.Richardson, supra, 403 U.S. 365; Truax v. Raich,239 U.S. 33 [60 L.Ed. 131, 36 S.Ct. 7];
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OPINION
Jose Angel Rappard appeals from a judgment pronounced upon the revocation of the probation previously granted him following his conviction (without judgment thereupon) of being an alien in possession of a concealable firearm and sentencing him for the offense. (1) This
judgment is a final judgment of conviction and therefore appealable. (Pen. Code, § 1237, subd. 1; People v. Delles,69 Cal.2d 906, 908-909 [73 Cal.Rptr. 389, 447 P.2d 629].)
The sole question presented for decision is whether the statutory prohibition of aliens from owning or possessing concealable firearms (Pen. Code, § 12021, subd. (a)1) constitutes a denial of equal protection of the law under the United States and California Constitutions. (See U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 11, 21.)
(2) It is well settled that the protection afforded by the Fourteenth Amendment's prohibition against a state's denial of equal protection of the law to "any person" within its jurisdiction extends to aliens as well as citizens of the United States. (See Graham v. Richardson, 403 U.S. 365, 371 [29 L.Ed.2d 534, 541, 91 S.Ct. 1848].) (3) Since classifications based upon alienage, like those predicated upon nationality or race, are inherently suspect and subject to close judicial scrutiny (id. at p. 372 [29 L.Ed.2d at pp. 541-542]; Rafaelli
v. Committee of Bar Examiners, 7 Cal.3d 288, 292 [101 Cal.Rptr. 896, 496 P.2d 1264]) we must invoke the following strict standard when reviewing a discriminatory statute based upon alienage: "`Not only must the classification reasonably relate to the purposes of the law, but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest.' (Fns. omitted.)" (Raffaelli v. Committee of Bar Examiners, supra,
7 Cal. 3d at pp. 295-296, quoting Purdy Fitzpatrick v. State ofCalifornia, 71 Cal.2d 566, 579 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194].)
The People apparently contend that this statute is the necessary means of promoting the compelling state interest of public safety. They predicate this contention on the proposition that the possession of concealable firearms by aliens is inherently dangerous to public safety. This proposition, however, has been rejected by the California courts, which have recognized that there are no rational grounds for believing that all residents who are not also citizens are ipso facto uncommitted to peaceful and lawful behavior. (See, e.g., Raffaelli v.Committee of Bar Examiners, supra, 7 Cal. 3
d at p. 298.) "It is common knowledge that several million aliens are living in this country and that the vast majority are peaceful and law abiding. Undoubtedly, many are serving or have children serving in the armed forces. Consequently, to categorically hold that every alien who is intentionally in possession of a concealable weapon, regardless of the reason, is guilty of an offense inherently dangerous to human life . . . would manifestly lead to unjust and even absurd results. . . . [A] person does not . . . show a tendency toward crime simply because he is not a citizen of this country." (People v.Lovato, 258 Cal.App.2d 290, 293, 296 [65 Cal.Rptr. 638]; see also Raffaelli v. Committee of Bar Examiners, supra, 7 Cal.3d at p. 298, and People v. Satchell, 6 Cal.3d 28, 38-39 [98 Cal.Rptr. 33, 489 P.2d 1361], approving the quoted reasoning ofLovato.)
(4) In short, the classification of the statute — alienage — has no reasonable relationship to the threat to public safety which Penal Code section 12021 was ostensibly designed to prevent. Any classification which treats all aliens as dangerous and all United States citizens as trustworthy rests upon a very questionable basis. (Cf. Purdy Fitzpatrick v. State ofCalifornia, supra, 71 Cal.2d 566, 582.) We conclude, therefore, that the People have not sustained their burden of establishing that the classification — based as it is upon the suspect factor of alienage — not only promotes a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose. (See Raffaelli v. Committeeof Bar Examiners, supra, 7 Cal.3d at p. 301.) Classification based upon alienage, as Justice Mosk said, ". . . is the lingering vestige of a xenophobic attitude which . . . should now be allowed to join those [other] anachronistic classifications among the crumbled pedestals of history." (Id. at p. 291.)
The People and our dissenting colleague rely, nevertheless, upon In re Rameriz, 193 Cal. 633 [226 P. 914, 34 A.L.R. 51], a 1924 California Supreme Court decision which upheld this same statute against an equal protection challenge. This case is not controlling for two reasons. First, as the People admit, some of the grounds upon which Rameriz' conclusion of constitutionality rested have been explicitly rejected in Raffaelli as valid grounds for distinguishing between citizens and aliens. (CompareIn re Rameriz, supra, at p. 645 with Raffaelli v. Committeeof Bar Examiners, supra, 7 Cal.3d at pp. 296-300.) Second, recent developments in the law of equal protection, confirmed inTakahashi v. Fish Comm'n., 334 U.S. 410 [92 L.Ed. 1478, 68 S.Ct. 1138], dictate that a stricter standard of judicial review than the permissive rational basis test used in Rameriz
be applied to classifications based upon the suspect factor of alienage.2 (See Purdy Fitzpatrick v. State ofCalifornia, supra, 71 Cal.2d 566, 582; see also, Graham v.Richardson, supra, 403 U.S. 365; Truax v. Raich,239 U.S. 33 [60 L.Ed. 131, 36 S.Ct. 7]; Yick Wo v. Hopkins,118 U.S. 356 [30 L.Ed. 220, 6 S.Ct. 1064].)
Accordingly, Penal Code section 12021, as it applies to aliens, is declared unconstitutional. The judgment is reversed.
Ford, P.J., concurred.