People v. Norton, Cr. A

• Decision Date: 19 April 1978
• Docket Number: Cr. A
• Citation: 146 Cal.Rptr. 343,80 Cal.App.3d Supp. 14
• Court: California Superior Court
• Parties: 80 Cal.App.3d Supp. 14 The PEOPLE, Plaintiff and Respondent, v. John NORTON, Defendant and Appellant. 118220. Appellate Department, Superior Court, Santa Barbara County, California

Page 343

146 Cal.Rptr. 343

80 Cal.App.3d Supp. 14

The PEOPLE, Plaintiff and Respondent, v. John NORTON, Defendant and Appellant.

Cr. A. 118220.

Appellate Department, Superior Court, Santa Barbara County, California.

April 19, 1978.

[80 Cal.App.3d Supp. 17] James E. Marino, Santa Barbara, for defendant and appellant.

Stanley M. Roden, Dist. Atty., Craig A. Smith and Patrick McKinley, Deputy Dist. Attys., for plaintiff and respondent.

DODDS, Judge.

Appellant was convicted by jury of misdemeanor battery (Pen.Code, § 242) and with brandishing a firearm. (Pen.Code, § 417, subd. (a)1). In a separate court trial, he was convicted of having a revolver in his possession after having been previously convicted of a felony (Pen.Code, § 12021, subd. (a), charged as a misdemeanor). He appeals from the order granting probation.

FACTS

In 1943, when appellant was 20 years of age, he pleaded guilty to second degree burglary, a felony, before a Nevada court. He was sentenced to state prison.

After he was released, the Nevada Board of Pardon and Parole Commissioners issued a document restoring his civil rights. The document provides in pertinent part: "Now, therefore, it is ordered, that all civil disabilities resulting by the law of the State of Nevada from said conviction of a felony be and they hereby are removed."

In early 1976, appellant was a bartender at the Grapevine Bar, which is located in Carpinteria, California. The liquor license for the bar had been issued to appellant's wife.

On January 18, 1976, Mr. Tellinghast, Mr. Feldman, and David Norton ¹ went to the Grapevine Bar to play a league game of darts against the Grapevine team. During the course of the evening, the three visitors and appellant were drinking. After appellant boasted concerning his ability to play darts, Mr. Tellinghast offered to play appellant for money.

Appellant became quite angry and went to the cash register and retrieved a revolver. According to the victims, appellant pointed the revolver at Mr. Tellinghast's abdomen, saying, "I'm going to blow you away, you cocksucker." Appellant was shaking the gun as he spoke. Mr. Tellinghast raised his hands and tried to calm appellant. Finally, appellant's wife persuaded appellant to put the gun away and Mr. Tellinghast and Mr. Feldman left the bar.

David Norton testified that he remained behind to retrieve certain expensive darts. Appellant then pushed him and told him to leave the bar. David Norton dropped the darts, and, as he bent over to pick them up, appellant struck him with a roundhouse punch to his head. After appellant struck him a second time, David Norton managed to get out of the bar.

The investigating officer arrived a few minutes later and asked appellant about the incident. Appellant admitted striking a patron but denied pulling any weapon. Appellant did, however, turn over a loaded .357 magnum revolver with a two (2) inch barrel to the investigating officer. No mention was made of any other weapon at that time.

Appellant testified that he owned a replica of a .38 revolver which also had a two (2) inch barrel. It's barrel was welded shut and the weapon was inoperable. This "toy," called a "non gun," was filled with lead.

Appellant admitted threatening Tellinghast by saying "I'm going to blow you away." He stated that he retrieved the non-gun and held it at his side to bluff the visitors. Although he admitted striking David Norton once, he felt that he was acting in self defense since David Norton had darts in his hands.

ISSUES

The battery conviction is supported by substantial evidence and must be affirmed, however, appellant has raised the following issues which merit greater consideration.

1. May a person previously convicted of a felony in Nevada own or possess a concealable firearm in California after he was issued a Nevada certificate removing all civil disabilities under Nevada law arising from the felony conviction?

2. Did the trial court properly reject appellant's mistake of fact defense?

3. Must the conviction for violating Penal Code section 12021, subdivision (a) be reversed for a limited new trial on the issue as to whether the Nevada conviction was valid?

4. When a person is charged with violating Penal Code section 417, subdivision (a), must the trial court give instructions defining the terms "firearm" and "deadly weapon?"

DISCUSSION

1. THE NEVADA CERTIFICATE DID NOT ALLOW APPELLANT TO POSSESS A CONCEALABLE WEAPON IN CALIFORNIA.

Our Supreme Court has held that a pardon does not obliterate the record of conviction. Therefore, if defendant commits a new offense, the prior conviction could be considered in determining whether he was a habitual criminal. (People v. Biggs (1937) 9 Cal.2d 508, 71 P.2d 214; 116 A.L.R. 205; see also Carlesi v. New York (1914) 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (presidential pardon).) This is the view taken by a majority of jurisdictions. (See Annot. Pardon as Affecting Consideration of Earlier Conviction in Applying Habitual Criminal Statute (31 A.L.R.2d 1186.)

There is a conflict whether a pardoned offense may be used for other purposes. In People v. Dutton (1937) 9 Cal.2d 505, 71 P.2d 218 app.dism., 302 U.S. 656, 58 S.Ct. 365, 82 L.Ed. 508, our Supreme Court held that a person convicted of forgery who was previously convicted of the same offense could be treated as a repeat offender even though he was given a pardon for the prior offense. The court reasoned that "full faith and credit is not involved." (Id. at p. 506, 71 P.2d at p. 219.)

In People v. Terry (1964) 61 Cal.2d 137, 147-148, 37 Cal.Rptr. 605, 390 P.2d 381, cert. den. 397 U.S. 866, 85 S.Ct. 132, 13 L.Ed.2d 68, our Supreme Court held that it was error to admit proof that defendant had suffered a prior Oklahoma felony conviction where he had received a pardon for the prior offense by Oklahoma authorities. Our Supreme Court, without mentioning either Biggs or Dutton, reasoned that California was required to give full faith and credit to an Oklahoma full pardon (Id. at p. 148, 37 Cal.Rptr. 605, 390 P.2d 381). ²

In 1973, the Attorney General issued an opinion wherein he concluded that a person convicted of a felony by a sister state who received a gubernatorial pardon from that state was still prohibited from possessing a concealable firearm in California. (56 Ops.Cal.Atty.Gen. 138 (1973).) Relying on Biggs and certain federal cases, the Attorney General concluded that California was not required to recognize sister state pardons. However, no mention was made of the Terry decision.

In view of Terry, we are required to consider whether the certificate issued to appellant affords him immunity from prosecution under Penal Code section 12021, subdivision (a). However, we observe at the outset that while the full faith and credit clause is designed to give maximum recognition to rights credited or recognized under the laws of sister states, it does not compel the forum state to subordinate its own laws and policies to conflicting laws or public acts of a sister state. Instead, courts must appraise the governmental interests of each of the states. (See Alaska Packers Assn. v. Industrial Accident Com'n. (1935) 294 U.S. 532, 546-548, 55 S.Ct. 518, 79 L.Ed. 1044; Hughes v. Fetter (1951) 341 U.S. 609, 611-612, 71 S.Ct. 980, 95 L.Ed. 1212.) Thus, if we have a "true" conflict between the laws of California and Nevada, and both states had an interest in having their laws applied, we would then be forced to inquire whether California's public policy would be "very significantly impaired" if an exemption created by Nevada law was recognized. (See Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719, cert. den., 429 U.S. 859, 97 S.Ct. 159). ³

In order to determine whether the full faith and credit clause is involved, we must first determine whether there is an actual conflict between California law and Nevada law. ⁴

Under California law, a person who has been convicted of a felony under the laws of the United States, or the State of California, or of any other state, government, or country who owns or has in his possession or under his custody and control any pistol, revolver, or other firearm capable of being concealed upon his person is guilty of a crime (Pen.Code, § 12021, subd. (a)).

In order to gain a conviction, the prosecutor must prove (1) a conviction of a felony, and (2) ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal.App.3d 494, 497, 124 Cal.Rptr. 913.) The definition of a concealable firearm is quite broad. (See Pen.Code, § 12001; People v. Thompson (1977)72 Cal.App.3d 1, 139 Cal.Rptr. 800.)

Although a person deemed convicted of a misdemeanor is exempt (see Pen.Code, § 17, subd. (b)), a person convicted of an offense punishable as a felony, may not possess a concealable weapon until the offense is declared to be a misdemeanor. (See People v. Banks (1959) 53 Cal.2d 370, 381-384, 1 Cal.Rptr. 669, 348 P.2d 102; People v. Livingston (1970) 4 Cal.App.3d 251, 254-255, 84 Cal.Rptr. 237; People v. Holzer (1971) 25 Cal.App.3d 456, 460, 102 Cal.Rptr. 11.) Likewise, since 1961, dismissal of a case pursuant to Penal Code section 1203.4 does not permit a defendant to own a concealable weapon. (Pen.Code, § 1203.4, subd. (a).)

The only knowledge required by the statute is knowledge of the character of the object possessed. Evidence that defendant was unaware of the legal prohibition is altogether irrelevant. (People v. Mendoza (1976) 251 Cal.App.2d 835, 843, 60 Cal.Rptr. 5; People v. Bray, supra, 52 Cal.App.3d 494, 498, 124 Cal.Rptr. 913; People v. Howard (1976) 63 Cal.App.3d 249, 256-257, 133 Cal.Rptr. 689.)

When reasonable men would have difficulty in ascertaining whether a prior out of state conviction is a felony or misdemeanor, a mistake of fact instruction is required (People v. Bray, supra ). However, where defendant admitted his felony conviction,...