People v. Mills

• Decision Date: 27 May 1992
• Docket Number: No. E009011,E009011
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Eugene MILLS, Defendant and Appellant.

Page 310

8 Cal.Rptr.2d 310

6 Cal.App.4th 1278

PEOPLE of the State of California, Plaintiff and Respondent, v. David Eugene MILLS, Defendant and Appellant.

No. E009011.

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

May 27, 1992.

As Modified June 19, 1992.

Review Denied Aug. 13, 1992.

[6 Cal.App.4th 1281] Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen., and Joyce N. Burnett, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

A jury convicted defendant Mills of possession of a firearm by a convicted felon in violation of Penal Code section 12021, subdivision (a). He appeals contending that (1) the 1990 amendment to Penal Code section 12021, subdivision (a) is an ex post facto law as to him and (2) his conviction should be reversed on due process and equal protection grounds because he was not actually personally notified of the amendment to the law, while persons actively on probation were notified.

FACTS

The relevant facts are simple and undisputed. On July 6, 1981, defendant was convicted of possession of marijuana for sale, a felony. (Health & Saf. Code, § 11359.) He was placed on probation for five years.

At the time of defendant's 1981 conviction, Penal Code section 12021, subdivision (a) read as follows: "Any person who has been convicted of a felony under the laws of ... California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense...." (Emphasis added.)

In 1989, Penal Code section 12021, subdivision (a) was amended, effective January 1, 1990, to read as follows: "Any person who has been convicted of a felony under the laws of ... California ... who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." (Stats.1989, ch. 1044, § 3, emphasis added.)

In July 1990, defendant brought a shotgun into a sporting goods store to have the gun repaired. The proprietor of the store, a CHP officer, subsequently inquired about defendant's prior record. The officer then learned of the prior felony conviction.

Defendant was arrested on July 19, 1990, for being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a). His trial and this appeal followed.

INTRODUCTION

The United States Constitution (article I, §§ 9 and 10) and the California Constitution (article I, § 9) prohibit the passage of ex post facto laws. The clearest example of such a law is one which defines a new crime and applies its definition retroactively to conduct which was not criminal at the time it occurred.

"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 potentially 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." (Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23.)

There is no significant difference between the federal and state constitutional provisions. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297, 279 Cal.Rptr. 592, 807 P.2d 434.) " '[T]he principle on which the [ex post facto] Clause is based--the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties--is fundamental to our concept of constitutional liberty.' " (People v. Wharton (1991) 53 Cal.3d 522, 586, 280 Cal.Rptr. 631, 809 P.2d 290.)

Most of the difficulties in applying the constitutional provisions occur in the interpretation of the prohibitions against retroactively increasing punishment for a crime which carried a lesser penalty when committed. (1 LaFave & Scott, Substantive Criminal Law (1986) § 2.4, p. 136.) Defendant attempts to bring himself within this category.

WAS DEFENDANT'S PUNISHMENT RETROACTIVELY INCREASED?

Defendant contends that the 1990 change in the law increases the punishment for his 1981 conviction, and is therefore a prohibited ex post facto law. He relies on Collins v. Youngblood (1990) 497 U.S. 37, ----, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30, 38. In that case, the Supreme Court discusses the meaning of the ex post facto clause of the federal Constitution. (U.S. Const., art. I, § 10.) The court begins with the meaning of the term: "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." (Id., 497 U.S. at p. ----, 110 S.Ct. at p. 2718, 111 L.Ed.2d at p. 38.)

The court then quotes the accepted definition of ex post facto laws from the early case of Calder v. Bull (1798) 3 Dall. 386, 390-392, 1 L.Ed. 648, 650: " '1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. 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.' " (Collins v Youngblood, supra, 497 U.S. 37, ----, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 38-39 quoting Calder v. Bull (1798) 3 Dall. 386, 390-392, 1 L.Ed. 648, 650. Emphasis in original.)

Relying on the second and third elements of the Calder definition, ¹ defendant states his position clearly: "When appellant was convicted of a felony in 1981 one of the legal consequences of that conviction was the penalty and disability of owning or possessing a concealable firearm, and any attempt to increase or make that disability more onerous retroactively by precluding possession of all firearms constitutes an ex post facto law."

Our own Supreme Court has recently quoted Collins in determining whether Proposition 115 should be applied to prosecutions of crimes committed before its effective date. (Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434.) The court noted that the U.S. Supreme Court "rejected the proposition that a law violates the ex post facto clause simply because it eliminates a 'substantial protection' existing at the time an offense was committed." Accordingly, "[a]fter Collins, we need not determine 'how substantial is the right that the statute impairs and how significant is that impairment.' [Citation.] Instead, we can resolve such challenges by applying the exclusive Calder categories." (Id., at pp. 294-295, 279 Cal.Rptr. 592, 807 P.2d 434.) Applying those categories, the court held that certain provisions of Proposition 115 which defined conduct as a crime, increased punishment for a crime, or eliminated a defense, could not be applied retroactively because "[a]pplication of these provisions to crimes committed before the measure's effective date would be 'retrospective' because each would change the legal consequences of the defendant's past conduct." (Id., at p. 298, 279 Cal.Rptr. 592, 807 P.2d 434.) Other provisions, relating to the conduct of trials, could be applied to pending cases, regardless of when the crime was committed. (Id., at pp. 299-300, 279 Cal.Rptr. 592, 807 P.2d 434; cf. People v. Wharton, supra, 53 Cal.3d 522, 586, 280 Cal.Rptr. 631, 809 P.2d 290.)

The U.S. Supreme Court also reaffirmed the Calder categories in Miller v. Florida (1987) 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351. In that case, sentencing guidelines were increased between the date of the crime and the date of sentencing, and the court held that the application of the new guidelines to defendant was ex post facto because it was retrospective and it disadvantaged defendant. (Id., at p. 430, 107 S.Ct. at p. 2451, 96 L.Ed.2d at p. 359.) The court said: "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.' " (Ibid., quoting Weaver v. Graham, supra, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17, 24.) Since the change in sentencing guidelines retroactively increased the punishment for defendant's crime, it was retrospective for purposes of the ex post facto test.

In In re Ramirez (1985) 39 Cal.3d 931, 218 Cal.Rptr. 324, 705 P.2d 897, our Supreme Court also considered whether a change in a sentencing statute was retrospective under the Weaver test. The court stated that the issue was "whether a new statutory plan for awarding sentence reduction credits may be applied, without violation of the ex post facto clauses of the California or federal Constitutions, to prisoners who committed crimes before the effective date of the new scheme. We conclude that it may." (Id., at p. 932, 218 Cal.Rptr. 324, 705 P.2d 897.)

The court applied the test stated in Weaver v. Graham, supra, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23, to determine whether the new law was retrospective. We find the court's discussion determinative here: "For a law to be retrospective, 'it must apply to events occurring before its enactment.' [Citation.] A retrospective law violates the ex post facto clauses when it 'substantially...