Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge. Super. Ct. No. BF111654A
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant David Allan Hayder was convicted of possessing methamphetamine and being a felon in possession of a firearm. On appeal, he contends he was not a felon at the time he possessed the firearm because his felony convictions had been reduced to misdemeanors and dismissed. Therefore, he asserts, insufficient evidence supported the conviction. Finding merit in defendant’s contention, we reverse and remand for resentencing.
PROCEDURAL SUMMARY
On November 2, 2005, the Kern County District Attorney charged defendant with various counts, including being a felon in possession of a firearm (Pen. Code § 12021, subd. (a)(1); count 3).
All statutory references are to the Penal Code unless otherwise noted.
The trial court denied defendant’s motion to suppress evidence (§ 1538.5), then rejected his mistake of fact defense, which was based on his belief that he was no longer a felon because his prior felony convictions had been reduced to misdemeanors under section 17, subdivision (b) and dismissed under section 1203.4.
Defendant requested a bench trial. Defendant stipulated that he had two felony convictions and that the substance found in his car was methamphetamine.
The prosecution sought dismissal of several counts, with the understanding that defendant would not seek Proposition 36 drug diversion following appeal. The court dismissed those counts and found defendant guilty of transportation of methamphetamine (count 1) and possession of a firearm by a felon (count 3).
The court sentenced defendant to two years on count 1, to be served concurrently with a term imposed in an unrelated case, and two years on count 3, to be served concurrently with the term in count 1.
DISCUSSION
To establish the violation of section 12021, subdivision (a)(1), the prosecution had to prove that defendant had been convicted of a felony; that he owned, possessed, or had custody or control of a firearm; and that he knew of the presence of the firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) The section 12021 charge against defendant in this case specifically alleged he was a felon because he had been convicted of being an accessory, a violation of section 32 on December 20, 1995 in case SC 58634A. At the preliminary hearing, the prosecution presented “a certified copy of the defendant’s criminal history showing that on December 20, 1995, [defendant] was convicted of a felony Penal Code Section 32.” Later, during motions in limine, defendant presented an offer of proof in support of a mistake of fact defense. Attached to that offer of proof, which was made part of the record, were documents showing that in December 1995, when defendant was sentenced on the section 32 conviction, a “wobbler” offense, the court imposed three years’ felony probation, and noted that the “case [was] to be reduced to [a] misdemeanor after 1 year of compliance.” Five years later, in February 2000, the court granted defendant’s motion to reduce the conviction to a misdemeanor under section 17, subdivision (b), and then dismiss it under section 1203.4.
A wobbler offense is punishable as either a felony or a misdemeanor. “It is settled that where the offense is alternatively a felony or misdemeanor (depending upon the sentence), and the court suspends the pronouncement of judgment or imposition of sentence and grants probation, the offense is regarded a felony for all purposes until judgment or sentence and if no judgment is pronounced it remains a felony [citations].” (People v. Esparza (1967) 253 Cal.App.2d 362, 364-365.)
Section 17, subdivision (b) provides in relevant part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] … [¶] (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 or probation officer thereafter, the court declares the offense to be a misdemeanor.”
Section 1203.4 provides in relevant part: “(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted ….
The People do not contest the validity of these documents, nor do they dispute that defendant’s felony conviction was reduced to a misdemeanor pursuant to section 17, subdivision (b). Instead, they focus on the dismissal under section 1203.4 and apparently argue that defendant remained a felon for section 12021 purposes following that dismissal.
For the reasons explained below, we conclude after reviewing the entire record that there was insufficient evidence to prove defendant was a felon when he possessed the firearm, an essential element of the offense. (People v. Johnson (1980) 26 Cal.3d 557, 576 [when determining sufficiency of evidence, we review entire record and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt].) The evidence in this case showed that defendant was convicted of a felony, but that felony was subsequently reduced to a misdemeanor pursuant to section 17, subdivision (b) and dismissed pursuant to section 1203.4. According to the plain language of section 17, subdivision (b), after the conviction was reduced to a misdemeanor, it was thereafter “a misdemeanor for all purposes.” (§ 17, subd. (b)(3); Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1483 (Gebremicael) [§ 17’s unambiguous language means what it says, and unless Legislature states otherwise, person stands convicted of a misdemeanor, not a felony, for all purposes upon court so declaring]; Gebremicael, supra, at p. 1489 [relief under § 17 “changes the fundamental character of the offense”].) “[A] person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of Penal Code section 12021. [Citation.]” (Gebremicael, supra, at p. 1485, citing People v. Banks (1959)53 Cal.2d 370, 388 [where defendant remained convicted of felony because he failed to take available procedural steps to reduce his conviction to misdemeanor].) Thus, when defendant was found in possession of a firearm in this case, he was no longer convicted of a felony within the meaning of section 12021.
The People’s contention that Gebremicael is distinguishable because the conviction in that case was reduced to a misdemeanor in one proceeding and dismissed in another is nonsensical. Section 17, subdivision (b) allows a court to reduce a felony to a misdemeanor for all purposes. Independently, section 1203.4 allows a court to dismiss a conviction, whether it is a felony or a misdemeanor. (See Gebremicael, supra, 118 Cal.App.4th at p. 1489 [relief under § 1203.4 affects only the punishment; by contrast, § 17 reduces a wobbler felony to a misdemeanor for all purposes].) Section 1203.4 expressly states -- and the People rely on this language -- that a dismissal under its terms “does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.” (Italics added.) The People suggest this language means that such a dismissal prohibits a person from owning, possessing, or having custody or control of a firearm and requires his conviction under section 12021. We, however, take the language to mean that if the person is not already permitted to own or possess a firearm, dismissal under section 1203.4 will not change that; nor will it protect such a person from conviction under section 12021. (See People v. Frawley (2000) 82 Cal.App.4th 784, 788 [language of § 1203.4 “forbids interpreting the statute to grant the right to possess such firearms”]; People v. Bell (1989) 49 Cal.3d 502, 546 [relief under § 1203.4 does not authorize or permit convicted felons to possess weapons and does not prevent their prosecution under § 12021].)
We conclude that in light of the reduction of defendant’s felony to a misdemeanor under section 17, subdivision (b) -- which, as we have stated, was for all purposes -- the prosecution failed to prove defendant was a felon at the time he possessed the firearm. We therefore reverse the conviction for being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
DISPOSITION
The judgment of conviction on count 3 is reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed. The abstract of judgment incorrectly identifies the date of conviction on count 3 as “05-21-06,” rather than 02-21-06.” The abstract of judgment also incorrectly identifies counts 1 and 3 as convictions by jury, rather than by court. The trial court is directed to correct the abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: Gomes, Acting P.J., Dawson, J.
“Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.”