Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC805573.
Duffy, J.
Defendant Michael Brown was convicted by no contest plea of attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (a)(2), which the court reduced to a misdemeanor at sentencing. By then, defendant had already suffered prior felony convictions such that he was precluded, as a convicted felon, from owning or possessing a firearm under section 12021, subdivision (a)(1) or ammunition under section 12316, subdivision (b)(1), for the rest of his life. At sentencing, the court placed defendant on three years’ probation and imposed various conditions. The court also said to defendant that he was not “to own or possess any firearms or ammunition for the rest of [his] life.”
Further statutory references are to the Penal Code.
On appeal, defendant contends that this statement constituted a lifetime condition of probation that was erroneous because its duration exceeded the probation term. We conclude that when placed in proper context, the court’s statement was not a probation condition but merely an advisement that defendant, as a convicted felon, was subject to the firearm ban of section 12021, subdivision (a)(1) and the ammunition ban of section 12316, subdivision (b)(1). We accordingly reject his claim and affirm.
STATEMENT OF THE CASE
We take the facts from the probation report.
In May 2008, defendant’s brother was being tried for rape in Department 39 of the Superior Court for the County of Santa Clara, the third trial for the same offense. Defendant was inside the courtroom and the complaining witness and victim, Jane Doe, was sitting in the nearby hallway outside Department 40, accompanied by Leandra Peloquin, an employee of the Y.W.C.A. Rape Crisis Center. Apparently upset by the testimony of a police officer during the trial, defendant came out of Department 39 and proceeded to the restroom, walking directly in front of Doe, who had testified at the previous rape trials, and Peloquin. As he did so, defendant said in a loud voice, “ ‘Bitch should have had her f___in a__ kicked the second time she testified.’ ” After leaving the restroom, which was right in front of where Doe and Peloquin were sitting, defendant walked by them again and in a loud voice said, “ ‘Lying ass cow.’ ”
According to Peloquin, defendant did not look at her or the victim as he spoke but he knew “ ‘who [they] were.’ ” As a result of defendant’s comments, Doe felt “ ‘hopeless and scared’ ” and was afraid to testify for fear that defendant would harm her. Doe said that although defendant did not look at her, she felt that he was “directing his comments to her in an attempt to scare her and make her feel uncomfortable about testifying.”
Peloquin sought the aid of deputies at the courthouse and defendant was handcuffed after becoming “loud and belligerent” during their investigation. He was later arrested. At the time of his arrest, his criminal history reflected three prior felony convictions, two for possession of a controlled substance and one for conspiracy to commit a crime.
II. Procedural Background
Defendant was charged by felony complaint with one count of attempting to dissuade a victim or witness from testifying in violation of section 136.1, subdivision (a)(2). After being bound over for trial, defendant was similarly charged by information. He later pleaded no contest to the single charge in a negotiated disposition. Under that disposition, he moved to reduce the charge to a misdemeanor. At sentencing, the court granted that motion, suspended sentence as recommended in the probation report, and placed defendant on three years’ formal probation. He was ordered to serve one year in the county jail with credit for time served.
The probation report noted among its recommendations that defendant was not to “own, possess, or have within his/her custody or control any firearm or ammunition for the rest of his/her life pursuant to [s]ection 12021 and [s]ection 12316[, subdivision] (b)(1) of the Penal Code.” As recommended in that report, the court at sentencing imposed various fines and fees and conditions of probation and ordered defendant to, for example, enter and complete a substance abuse program and to seek and maintain employment as directed by the probation department and to have no contact with the victim in this case. The court also said to defendant, consistently with the notation in the probation report, that he was not “to own or possess any firearms or ammunition for the rest of [his] life.” Defendant raised no objection to this statement.
This appeal followed.
DISCUSSION
Defendant contends that the court imposed an erroneous condition of probation by its statement that defendant was not to own or possess a firearm or ammunition for the rest of his life in that the duration of this directive exceeded the three-year probation term imposed. After first arguing that defendant’s claim has been forfeited by the failure to have objected below, respondent on the other hand casts the court’s statement as merely an advisement of the fact that given defendant’s status as a convicted felon at sentencing, he was subject to section 12021, subdivision (a)(1)’s prohibition on his ownership or possession of a firearm and section 12316, subdivision (b)(1)’s prohibition on his ownership or possession of ammunition. On this record, respondent has the better argument.
At the threshold, we address the People’s contention that defendant’s claim is forfeited on appeal for his failure to have objected below. Defendant’s claim is in essence that the court lacked the power to impose the lifetime prohibition on his ownership or possession of a firearm or ammunition as a probation condition. As defendant observes in reply, this is a pure question of law based on undisputed facts. If defendant’s claim has merit, it is easily remediated on appeal by our striking or modifying what is asserted to be the offending probation condition. Accordingly, the policies supporting the forfeiture doctrine-procedural efficiency and conservation of judicial resources-do not apply and no additional factual findings are required for us to address the claim. Although it might have been better if defendant had objected in the trial court to the asserted error because the court would have had the opportunity to clarify its statement, under these circumstances, we decline to deem defendant’s claim forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) We accordingly proceed to the merits.
Section 12021, subdivision (a)(1) provides in pertinent part that “[a]ny person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” This section thus makes it a crime for a convicted felon to own or possess a firearm for the rest of his or her life.
Similarly, section 12316, subdivision (b)(1) provides in pertinent part that “[n]o person prohibited from owning or possessing a firearm under Section 12021... shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.” This section thus extends section 12021, subdivision (a)(1)’s lifetime prohibition against a convicted felon owning or possessing a firearm to ammunition.
Defendant does not dispute that he is a convicted felon. Nor does he dispute that as such, he is subject to these lifetime statutory prohibitions against his ownership or possession of a firearm or ammunition, quite apart from any directive by the court in this case. Instead he contends that the directive as delivered constituted an improper condition of probation because it exceeded the three-year probation term. But as given, the directive was not expressed as a probation condition, though a firearm ban during the probationary period is a common condition of probation. Viewed appropriately in context, the directive was rather an advisement. When making the statement, the court was obviously referencing the probation report, which specifically cited sections 12021 and 12316 as the sources of the lifetime prohibitions. The court did not specifically cite these sections, but they clearly apply with the very effect that the court directed. And although the court’s statement was made among some other directives that did indeed constitute probation conditions, various others, such as the imposition of certain fines and fees, did not.
In short, we are convinced that the court’s directive concerning the statutory lifetime ban on defendant owning or possessing a firearm or ammunition because of his status as a convicted felon was not intended as, and did not constitute, an unlawful condition of probation. The statement was instead an accurate and proper advisement. We accordingly reject defendant’s single claim on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.