People v. Mesce

• Decision Date: 04 February 1997
• Docket Number: No. A071221,A071221
• Citation: 52 Cal.App.4th 618,60 Cal.Rptr.2d 745
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 839, 97 Daily Journal D.A.R. 1199 The PEOPLE, Plaintiff and Respondent, v. Richard Canniff MESCE, Defendant and Appellant.

Page 745

60 Cal.Rptr.2d 745

52 Cal.App.4th 618, 97 Cal. Daily Op. Serv. 839,

97 Daily Journal D.A.R. 1199

The PEOPLE, Plaintiff and Respondent, v. Richard Canniff MESCE, Defendant and Appellant.

No. A071221.

Court of Appeal, First District, Division 2, California.

Feb. 4, 1997.

Certified for Partial Publication. ^*

Review Denied May 14, 1997.

[52 Cal.App.4th 620] Geri Lynn Green, Under Appointment of the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Christopher W. Grove, Deputy Attorney General, Tyler R. Meade, Deputy Attorney General, for Plaintiff and Respondent.

LAMBDEN, Associate Justice.

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 In an unpublished portion of the opinion, we also reject defendant's other challenges to his conviction.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 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. 356, 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, 68-69, 70 L.Ed. 216, as quoted in Collins v. Youngblood, supra, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719.)

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 Dall.) 386, 390-392, 1 L.Ed. 648, italics omitted; Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30.)

In Collins v. Youngblood, supra, 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, 2718.) 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.] [p] 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, 963-965, 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, 110 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 (Camperlingo )[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 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, 8 Cal.Rptr.2d 310.)

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 [52 Cal.App.4th 624] 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, 218 Cal.Rptr. 324, 705 P.2d 897; quoted in M...