California Correctional Peace Officers Assn. v. Department of Corrections

• Decision Date: 16 June 1999
• Docket Number: No. C029712,C029712
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 4739, 1999 Daily Journal D.A.R. 6047 CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

Page 797

85 Cal.Rptr.2d 797

72 Cal.App.4th 1331, 99 Cal. Daily Op. Serv. 4739,

1999 Daily Journal D.A.R. 6047

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

No. C029712.

Court of Appeal, Third District, California.

June 16, 1999.

Joel H. Levinson, West Sacramento, for Plaintiff and Appellant.

Marguerite D. Shea, K. William Curtis, Kenneth R. Hulse, Sacramento, for Defendant and Respondent.

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 subdivision (c).

FACTS AND PROCEDURAL BACKGROUND

The matter was resolved by a summary judgment on the following pertinent ² 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, infra ). 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 "[a]lthough 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 The question is the proper construction of section 12021. The problem arises because an amendment to 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

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. 1, ch. 1, § 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.)

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 as it stood immediately after the enactment of the pertinent 1994 amendment, with 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, ⁵ the 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:

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 subdivision (c) and subdivision (a) (by virtue of its reference to section 12001.6, subd. (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).

"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 (Super.1946) 168 P.2d 497, 74 Cal.App.2d Supp. 967; 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) ..." 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 insure that in a case where a person convicted of a misdemeanor listed in subdivision (c) 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 "[e]xcept 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 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,...