U.S. v. Qualls, 95-50378

• Decision Date: 05 March 1997
• Docket Number: No. 95-50378,95-50378
• Citation: 108 F.3d 1019
• Parties: 97 Cal. Daily Op. Serv. 1641, 97 Daily Journal D.A.R. 3109 UNITED STATES of America, Plaintiff-Appellee, v. Danny Lynn QUALLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1019

108 F.3d 1019

97 Cal. Daily Op. Serv. 1641, 97 Daily Journal

D.A.R. 3109

UNITED STATES of America, Plaintiff-Appellee, v. Danny Lynn QUALLS, Defendant-Appellant.

No. 95-50378.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1996.

Decided March 5, 1997.

Vernon C. Jolley, Riverside, California, for defendant-appellant.

Jack S. Weiss, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-94-00101-AHS.

Before: FARRIS, BEEZER and TASHIMA, Circuit Judges.

OPINION

BEEZER, Circuit Judge:

Danny Lynn Qualls appeals his conviction for being a felon in possession of a firearm. Qualls argues that the district court erred in holding that his prior conviction for assault with a deadly weapon is a predicate conviction under 18 U.S.C. § 922(g)(1). Qualls also contends that the district court erred in granting the government's motion in limine to preclude Qualls from arguing this issue to the jury. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse.

I

In 1975, Qualls pled guilty to assault with a deadly weapon in violation of Cal.Penal Code § 245(a). The California court granted Qualls felony probation and suspended further proceedings. In 1980, the court ordered an early termination of Qualls' probation upon payment of $500 for probation costs. Qualls never applied to have his offense declared a misdemeanor, to withdraw his guilty plea or to dismiss the information against him, as California law permits.

On September 9, 1994, pursuant to a search warrant, agents of the Bureau of Alcohol, Tobacco, and Firearms recovered six firearms that had been shipped or transported in interstate or foreign commerce from Qualls' residence in Garden Grove, California.

A grand jury subsequently indicted Qualls on one count of violating 18 U.S.C. § 922(g)(1) for possession of the six firearms. After trial, the jury returned a guilty verdict. The court sentenced Qualls to forty-one months incarceration, a three-year period of supervised release and a special assessment of $100. This appeal followed.

II

Qualls contends that his 1975 conviction in California for assault with a deadly weapon cannot serve as a predicate conviction under 18 U.S.C. § 922(g)(1). Qualls' appeal involves questions of statutory interpretation which we review de novo. United States v. Herron, 45 F.3d 340, 341 (9th Cir.1995).

A

Qualls first argues that his prior state conviction is a misdemeanor for purposes of 18 U.S.C. § 922(g)(1). Section 922(g)(1) states:

[it] shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The statute's reference to "a crime punishable by imprisonment for a term exceeding one year" is considered a term of art that does not encompass "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20)(B). To fall outside the purview of § 922(g)(1), Qualls' prior conviction must both be considered a misdemeanor under California law and be punishable by less than two years imprisonment.

California has not classified Qualls' conviction for assault with a deadly weapon as a misdemeanor. Under California law, assault with a deadly weapon can be either a felony or a misdemeanor depending on the sentence imposed. Cal.Penal Code § 245(a) (assault with a deadly weapon is punishable by fine, by imprisonment in county jail or by imprisonment in state prison); Cal.Penal Code § 17(a) (a felony is a crime punishable by imprisonment in state prison; all other crimes are misdemeanors unless otherwise classified). An offense which can be either a felony or a misdemeanor is a misdemeanor for all purposes either:

(1) after a judgment imposing a punishment other than imprisonment in the state prison [or]

...

(3) when the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant thereafter, the court declares the offense to be a misdemeanor.

Cal.Penal Code § 17(b).

Qualls' conviction does not qualify as a misdemeanor under either provision. Qualls argues that § 17(b)(1) applies because the $500 fee the state court ordered Qualls to pay upon termination of his probation was a "punishment other than imprisonment in the state prison." The order terminating Qualls' probation, however, explicitly notes that $500 fee was to cover the costs of probation. Payment of the costs of probation is not a punishment. Further, the state court's initial grant of probation to Qualls is not a "judgment imposing a punishment other than imprisonment in state prison." See United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992) (under California law, an order granting probation and suspending the imposition of sentence is not a judgment for purposes of Cal.Penal Code § 17(b)) (citing People v. Smith, 195 Cal.App.2d 735, 737, 16 Cal.Rptr. 12 (1961) and People v. Arguello, 59 Cal.2d 475, 476, 30 Cal.Rptr. 333, 381 P.2d 5 (1963)).

Section 17(b)(3) is also inapplicable. The state court which granted Qualls probation did not declare Qualls' offense a misdemeanor. Rather, as Qualls admits, the court imposed a five-year felony probation. Nor did Qualls' conviction become a misdemeanor under California law when his probation terminated. The record does not indicate that Qualls applied to have his offense declared a misdemeanor, as is required by § 17(b)(3). See People v. Banks, 53 Cal.2d 370, 391, 1 Cal.Rptr. 669, 348 P.2d 102 (1959).

Our decision in United States v. Horodner supports the conclusion that Qualls' prior conviction is a felony for purposes of 922(g)(1). 993 F.2d 191 (9th Cir.1993) ("Horodner I "). In Horodner I we held that whether a conviction is a felony depends not upon the actual punishment received, but upon whether the conviction is "punishable by more than one year in prison." Id. at 194. Like Qualls, the Horodner I defendant was convicted of assault with a deadly weapon in violation of Cal.Penal Code § 245(a)(1), but did not serve any time in a state prison. Because assault with a deadly weapon is punishable by up to four years in state prison, Cal.Penal Code § 245(a)(1), however, the defendant's prior conviction properly served as a predicate to conviction under 18 U.S.C. § 922(g)(1). The same analysis applies to Qualls' California conviction for assault with a deadly weapon.

B

Qualls next maintains that California has expunged his conviction. If a state expunges a felon's conviction, that conviction "may not serve as a predicate conviction for a violation of section 922(g)(1), unless [the felon] has been informed by the state statute or other state action of any prohibition concerning firearms." United States v. Collins, 61 F.3d 1379, 1382 (9th Cir.) (quoting United States v. Cardwell, 967 F.2d 1349, 1350) (9th Cir.1992), cert. denied, 516 U.S. 1000, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); see 18 U.S.C. § 921(a)(20).

Under California law, when a court terminates a defendant's probation before the probation period has expired, the defendant is entitled to withdraw his guilty plea, have the accusation or information against him dismissed and be released from all penalties and disabilities resulting from the conviction. Cal.Penal Code § 1203.4. A defendant must petition the court for such expungment. Id.; California v. Ignazio, 290 P.2d 964, 137 Cal.App.2d Supp. 881, 882 (1955). Because Qualls never made such a petition, the state court never expunged his conviction.

C

Qualls also contends that he has retained his civil rights. A conviction for which a state has restored a felon's civil rights is not considered a "conviction" under 18 U.S.C. § 922(g)(1) unless the restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20); Collins, 61 F.3d at 1382.

We perform a two-step inquiry to determine if a defendant's civil rights have been restored. United States v. Meeks, 987 F.2d 575, 578 (9th Cir.1993) (citing United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991)). First, we ascertain whether a felon's civil rights are substantially restored under state law. If they are, we then determine whether state law expressly restricts the felon's right to possess firearms. Id.

Qualls' civil rights have been "restored" within the meaning of 18 U.S.C. 921(a)(20) because his California conviction did not impair his civil rights. ¹ In People v. Banks, the California Supreme Court held that:

a defendant whose guilt has been established ... but who has not been sentenced to prison, i.e., where probation has been granted and the proceedings have been suspended without entry of judgment, is subject to no disabilities whatsoever except those specifically declared by some other provision of law or affirmatively prescribed by the court as terms or conditions of probation. The probationer ... still retains his ordinary civil rights, unless the court has restricted them....

53 Cal.2d at 386-87, 1 Cal.Rptr. 669, 348 P.2d 102. A person is entitled to all civil rights when there is no final or pending judgment of conviction against him or her. Stephens v. Toomey, 51 Cal.2d 864, 873-74, 338 P.2d 182 (1959). There is no judgment pending against a probationer when the court withholds imposition of judgment and suspends further proceedings. See id. at 871, 338 P.2d 182. Because the California court granted Qualls probation and suspended further proceedings, Qualls does not have a...