Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR242302
Sepulveda, J.
Defendant appeals from his conviction, by jury trial, of unlawful possession of a firearm (Pen. Code, § 12021, subd. (c)(1)). On appeal, he contends that the trial court erred by preventing him from presenting a defense of mistake of fact and challenges the constitutionality of section 12021, subdivision (c)(1), claiming that it violates his right to bear arms and equal protection. We reject these contentions and affirm.
All statutory references are to the Penal Code.
Background
Defendant lived in a separate house on his mother’s property in Vacaville. On the day in question, his mother noticed that a vehicle which she associated with a woman who had caused problems in the past was parked near defendant’s home and asked him to have the woman leave. Defendant’s mother returned to her house and got her cordless telephone and a can of pepper spray. When defendant arrived at her home a few minutes later, she told him that she would call the police if the woman did not leave. Defendant took the telephone from his mother and threw it on the ground. His mother sprayed the pepper spray and some went into defendant’s eyes. When his mother followed him outside from her garage, he tackled her to the ground, put his fingers around her neck, and then let her go. Defendant’s mother returned to her house and defendant followed her, where he washed his eyes and then again pushed her down, put his knees on her arms, and put his hands on her throat. He said something to the effect that he might kill her and then kill himself. Defendant got a Bible, they prayed together, and he made his mother promise not to call the police. She suffered bruises around her eye, and on her arms, chest, elbow, and wrist.
The police investigated the incident, and after advising defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, took a statement from him. Defendant admitted smashing his mother’s telephone to keep her from calling the police, that she sprayed him with pepper spray, that they ended up rolling around on the floor, and that he made her swear not to call the police. He told the officers that there was a rifle in his house; a .22 caliber rifle was retrieved.
At trial, defendant testified to a similar account and indicated that his parents gave him the rifle, which he kept by his bed, for his eighteenth birthday. He admitted having a prior misdemeanor conviction for a violation of section 245, assault with a deadly weapon.
Defendant was charged by information with elder abuse (§ 368, subd. (b)(1)), dissuading a witness (§ 136.1, subd. (b)(1)), and unlawful possession of a firearm by a person previously convicted of misdemeanor assault with a deadly weapon. (§ 12021, subd. (c)(1).) The matter proceeded to jury trial and defendant was acquitted of the first two counts and convicted of the last count. Defendant was placed on probation and ordered to serve 206 days in county jail, among other conditions. This timely appeal followed.
Discussion
A. Preclusion of testimony regarding defendant’s alleged lack of notice that prior conviction made it illegal to possess firearm.
Defendant first contends that the trial court erred when it sustained the prosecutor’s objection to his proffered testimony that he was never informed (until after the current offense) that his misdemeanor conviction prohibited him from lawfully possessing a firearm. He argues on appeal that he also should have been permitted to testify that he believed that his right to possess a firearm was restored when an unrelated restraining order expired. He contends that this evidence was necessary in order for him to present a defense of mistake of fact.
Whether defendant was aware that it was illegal for him to possess a firearm is not a mistake of fact, but rather a mistake of law, which is not a defense. As the court explained in People v. Snyder (1982) 32 Cal.3d 590, 592-593 (Snyder) “ ‘It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof . . . . If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result.’ [Citations.] Accordingly, lack of actual knowledge of the provisions of section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by [the] section. [Citations.]” Thus the court found it was not a defense to a charge of a violation of section 12021 (based upon the defendant being a person previously convicted of a felony) that the defendant did not know of his legal status as a convicted felon, and that lack of such knowledge was no defense to that crime. As the Snyder court stated, “Thus, regardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.” (Snyder, supra, at p. 593, italics omitted.) Similarly, it is not a defense to a violation of section 12021, subdivision(c)(1) that defendant here did not know that a prior misdemeanor conviction of assault with a deadly weapon resulted in a prohibition against him possessing a firearm for a period of 10 years. He is charged with such knowledge, lack of which is a mistake of law and is not a defense to section 12021.
While lack of advisement or notice of this future consequence of his misdemeanor conviction of assault with a deadly weapon could have been raised in a motion to withdraw his plea in that case, it does not provide a defense to the present charge. Section 12021, subdivision (d)(2) requires that a defendant be provided a form from the Department of Justice giving him notice of the prohibition against possession of firearms that resulted from his misdemeanor conviction. However, that section specifically provides, “Failure to provide the notice shall not be a defense to a violation of this section.”
Defendant relies upon People v. Bray (1975) 52 Cal.App.3d 494 to support his position (as did the defendant in Snyder, supra, 32 Cal.3d 590). In Bray, the defendant pleaded guilty in Kansas to being an accessory before the fact and was placed on two years probation. (Bray at p. 496.) He subsequently sought to register to vote and filled out a form indicating he was uncertain whether he had been convicted of a felony; he was permitted to vote. (Ibid.) He sought employment as a security guard and stated he had not been convicted of a felony, but explained the prior offense; the Bureau of Collection and Investigative Services registered him as a guard. (Ibid.) Under those unusual circumstances, the appellate court ruled that it was error not to instruct upon mistake of fact, but cautioned that it was “only in very unusual circumstances such as these that the giving of these instructions is necessary.” (Id. at p. 499.) The court in Snyder rejected that defendant’s reliance upon Bray, noting that she “made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status.” (Snyder at p. 595.) Similarly here, defendant made no attempt to inform the government of the circumstances of his prior misdemeanor conviction or his unrelated restraining order (which carried with it its own prohibition against possession of a firearm, which was of shorter duration than that of section 12021, subdivision (c)(1)), or to seek their advice regarding his status vis-à-vis his ability to legally possess a firearm. Bray, even if correctly decided, is not controlling here and defendant’s mistake of law provides no defense to a charge of a violation of section 12021, subdivision (c)(1). The trial court therefore did not err in precluding defendant’s testimony on this issue.
The Snyder court notes, “Some authorities have suggested that reliance upon the erroneous advice of governmental authorities might constitute an exception to the general rule that a mistake of law is not defense. [Citations.]” (Snyder, supra, 32 Cal.3d 390 at p. 595.)
B. Constitutionality of section 12021, subdivision (c)(1).
Defendant next contends that section 12021, subdivision (c)(1) is unconstitutional, as it violates his right to bear arms under the Second Amendment to the United States Constitution and as it violates equal protection by prohibiting firearm possession only for those with prior California convictions. We reject each of these arguments.
1. Right to bear arms.
Defendant relies upon the recent United States Supreme Court decision in District of Columbia v. Heller (2008) ___ U.S. ___ [128 S.Ct. 2783] (Heller) in support of his contention that section 12021, subdivision (c)(1) violates his right to bear arms under the Second Amendment. As defendant states his position, “To comply with the constitutional mandate of Heller, section 12021 must exempt the constitutionally protected act of maintaining a firearm in the home for self defense.”
Assuming that the Second Amendment applies to the states through the Fourteenth Amendment, defendant’s argument still fails. In Heller, the Supreme Court declared unconstitutional, on Second Amendment grounds, legislation in the District of Columbia that basically prohibited the possession of usable handguns in the home (requiring firearms lawfully retained in the home to be rendered inoperable through the use of a trigger lock mechanism and prohibiting rendering any lawful firearm in the home operable for the purpose of immediate self-defense). (See Heller, 128 S.Ct. 2783 at pp. 2817-2818.) The court ruled that the Second Amendment does protect an individual right to possession of a firearm unconnected with service in a militia, and to use of the weapon for self-defense in the home. However, Justice Scalia, writing for the majority, explained, “Like most rights, the right secured by the Second Amendment is not unlimited . . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (Id. at pp. 2816-2817, italics added.) The court further noted, “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” (Id. at 2817, fn. 26.) Indeed, Justice Breyer, in discussing the appropriate standard of constitutional scrutiny to be applied in the challenge of the District of Columba statute, recognized that “the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear.” (Id. at p. 2851 (dis. opn. of Breyer, J., italics added).)
Heller, supra, 128 S.Ct. 2783 thus expressly recognizes that certain individuals may be deemed too dangerous to permit them to possess firearms, and permits governmental restrictions on their possession of firearms without running afoul of the Second Amendment’s guarantee of the personal right to bear arms. While section 12021, subdivision (c)(1) prohibits such possession by individuals who have suffered a prior conviction of certain enumerated misdemeanors (such as defendant’s prior conviction of a violent misdemeanor—assault with a deadly weapon), that prohibition is still within the ambit of constitutionally permissible control over firearm possession recognized in Heller. The parties point the court to no case authority discussing the applicability of Heller to California’s statutory scheme, but virtually every federal opinion post-Heller has upheld other statutory prohibitions on possession of firearms by individuals either convicted of felonies, or convicted of certain misdemeanors (such as domestic violence misdemeanor offenses). As one court noted, “Since Heller was decided, no court has found the firearm restrictions in 18 U.S.C. section 922 to be unconstitutional, even under an individual rights interpretation of the Second Amendment. Instead, courts have repeatedly affirmed the constitutionality of the statute’s prohibition of firearm possession by felons [citations]; persons convicted of domestic violence offenses [citations]; and illegal aliens [citation.].” (United States v. Yancey (W.D. Wis., Oct. 3, 2008, No. 08-cr-103-bbc) 2008 U.S. Dist. Lexis 77878 [upholding statute prohibiting firearm possession by unlawful user of controlled substance against Second Amendment challenge].)
The Fourth Appellate District recently addressed a similar challenge to section 12021, subdivision (c)(1) in People v. Flores (2008) 169 Cal.App.4th 568, 573-577, and (employing an analysis similar to our own) concluded that the prohibition against a defendant possessing a firearm due to his prior misdemeanor conviction of section 245, subdivision (a)(1) was not invalidated by Heller’s recognition of an individual right to bear arms under the Second Amendment. We are confident that California’s provision in section 12021, subdivision (c)(1), which prohibits an individual convicted of an enumerated misdemeanor (such as defendant’s prior conviction of a violent misdemeanor—assault with a deadly weapon), is within the category of permissible firearm regulation recognized by Heller, supra, 128 S.Ct. 2783.
We note that defendant argues that this court should engage in a strict scrutiny analysis of the statute in question. The Heller court, however, specifically declined to determine which level of scrutiny should apply to restrictions on an individual’s right to bear arms. Instead, the court recognized that certain “longstanding prohibitions” simply survive Second Amendment scrutiny, as discussed ante. (Heller, supra, 128 S.Ct. at pp. 2786, 2816-2817.) We conclude that section 12021, subdivision (c)(1) falls within this category of prohibitions which are permitted despite the right to bear arms afforded by the Second Amendment. Post-Heller decisions addressing the constitutionality of various firearm possession restrictions have taken a similar approach. (See, e.g., United States v. Chafin (S.D. W.Va., November 18, 2008, No. 2:0800129) 2008 U.S. Dist. Lexis 95809; United States v. Booker (D. Me. 2008) 570 F.Supp.2d 161; United States v. Luedtke (E.D. Wis., Nov. 18, 2008, No. 08-CR-189) 2008 U.S. Dist. Lexis 96597); United States v. Erwin, October 6, 2008, No. 1:07CR-556) 2008 U.S. Dist. Lexis 78148).)
Defendant specifically contends that because Heller, supra, 128 S.Ct. 2783 recognized the Second Amendment’s right to bear arms extended to individual possession of firearms in the home for use in self-protection, section 12021 is unconstitutional because it infringes upon the right of someone such as defendant whose criminal history would otherwise prevent him from possession of a firearm at home to keep such a weapon for potential use in self-protection. This contention is without merit.
Defendant selectively quotes from portions of the Heller opinion which recognize that an individual should be permitted to keep a firearm at home for self-protection and that the Second Amendment extends to such individual possession. However, in passing, he does acknowledge the limitations on the right to bear arms specifically recognized in Heller, supra, 128 S.Ct. 2783 at pages 2816-2817,and concludes that “its explicit preservation of restrictions on gun possession by felons and the mentally ill,” among other things, “suggest that firearm prohibitions targeting circumstances that present a threat to public safety may not be constitutionally protected.” (Ibid.) In addition to the above-quoted language in Heller recognizing that the right to bear arms is not unlimited, and emphasizing the continuing ability to limit the right of certain individuals to possess guns, the court in Heller noted when addressing that portion of the District of Columbia legislation that would have required all firearms possessed in the home to be disabled, “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” (Id. at p. 2818, italics added.) Additionally, as the Supreme Court summarized in its conclusion of the Heller opinion, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” (Heller, supra, at pp. 2821-2822, italics added.) Finally, when discussing the problem of handgun violence, the court concludes, “The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 2816-2817, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” (Id. at p. 2822, italics and boldface added.) The specific discussion referenced by the court in boldface above are those pages wherein the court indicated that nothing in its opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons, etc., and the footnote indicating that the identified presumptively lawful regulatory measures were cited only by example and were not intended to be exhaustive (discussed ante). Thus, even in its discussion and conclusions regarding the right of individuals to possess and use firearms in self-defense in one’s home, the court specifically limits its conclusions regarding the protection of the Second Amendment as extending only to those in lawful possession of such weapons and as preventing only absolute prohibitions, and specifically references the continuing ability of the government to limit such possession for individuals previously convicted of certain crimes. Thus, defendant’s argument fails.
We do not find inconsistent, as defendant argues, California’s past recognition that even an ex-felon, generally prohibited from possessing a firearm, may use one in self-defense. (See, e.g., People v. King (1978) 22 Cal.3d 12.) King did not authorize a felon to possess a firearm in anticipation that some day he might be faced with a situation where he would need to use it in self-defense; it merely recognized that “when a member of one of the affected classes is in imminent peril of great bodily harm . . . and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.” (Id. at p. 24.)
2. Equal Protection.
Finally, defendant contends that section 12021, subdivision (c)(1) violates equal protection because it prohibits only those individuals with enumerated prior misdemeanor convictions within our state from possessing firearms for 10 years, rather than extending this prohibition to individuals convicted of similar offenses in other states.
Unlike its counterpart restricting firearm possession by felons contained in section 12021, subdivision (a)(1), which prohibits such possession for those previously convicted of a felony “under the laws of the United States, the State of California, or any other state, government, or country,” section 12021, subdivision (c)(1) prohibits firearm possession for a period of 10 years only for those convicted of specific enumerated misdemeanors within the State of California. This limitation of firearm possession to those suffering convictions of specifically enumerated misdemeanors under California law, argues defendant, violates equal protection as those convicted of similar crimes in other states are not similarly restricted. We are unconvinced.
“The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.] However, neither clause [federal or California constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons. The necessary quantum of such reasons varies, depending on the nature of the classification. [¶] Legislation which discriminates on the basis of a ‘suspect class’ or touches on a fundamental right is subject to judicial examination under the ‘strict scrutiny’ test. [Citations.] However, most legislation challenged under the equal protection clause is evaluated merely for the existence of a ‘rational basis’ supporting its enactment. [Citations.] Under the latter analysis, the question is whether the classification bears a fair relationship to a legitimate public purpose. [Citation.]” (In re Evans (1996) 49 Cal.App.4th 1263, 1270 (Evans) [equal protection challenge to provisions of section 12021, subd. (c) providing certain individuals may seek relief from its prohibition against firearm possession].) Under the higher strict scrutiny test, the state must establish that the state interest intended to be served by the challenged classification is necessary to achieve a compelling state interest. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.)
As the court stated in Evans, supra, 49 Cal.App.4th 1263, “[t]he classification of misdemeanants does not involve a typically suspect classification such as race or sex. [Citation.]” (Id. at p. 1270.) The Evans court additionally noted, in determining that the classification should be analyzed under the rational basis test, that the private right to bear arms is not a “fundamental” right under the Second Amendment; our high court has subsequently recognized the right to bear arms as a private right guaranteed by the Second Amendment. (Heller, supra, 128 S.Ct. 2783.) However, in its historical approach to the analysis of the District of Columbia regulation, the court in Heller made reference to certain individuals being “disqualified” from exercising their Second Amendment rights (such as those convicted of felonies, the mentally ill, etc.). Thus, the court explained: “Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” (Id. at p. 2822, italics added.) Falling within the ambit of section 12021, subdivision (c)(1)’s classification of individuals prohibited from possessing a firearm for 10 years because of a prior conviction, defendant is “disqualified” from exercising his Second Amendment rights. In other words, defendant does not have a “fundamental right” to possess a firearm under the Second Amendment, as his prior conviction has “disqualified” him from exercising such right.
In Lewis v. United States (1980) 445 U.S. 55, 67, the court, in addressing an equal protection argument, applied the rational basis test and found that “Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.” During the course of its discussion on this issue, the Lewis court stated that such restrictions on the use of firearms did not “trench upon any constitutionally protected liberties,” citing United States v. Miller (1939) 307 U.S. 174, 178. (Lewis, supra, at p. 65, fn. 8.) The Court in Heller, in determining that the Second Amendment did protect a private right to bear arms, indicated that Miller only found that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” (Heller, supra, at pp. 2815-2816.) The court in Heller also referred to footnote 8 in Lewis as dicta, as “[n]o Second Amendment claim was raised or briefed by any party.” (Heller, supra, at p. 2815, fn. 25.) Although the Heller court recognized an individual right to bear arms, it did not indicate that a strict scrutiny standard should apply to challenges of statutes implicating Second Amendment rights.
In United States v. Darrington (5th Cir. 2003) 351 F.3d 632, 634-635, which presaged Heller, supra, 128 S.Ct. 2783by similarly finding an individual right to bear arms under the Second Amendment, the court nevertheless found that the strict scrutiny standard did not apply in an equal protection challenge to legislation that impacted that right. As the Darrington court stated, “Nor do we read Emerson [United States v. Emerson (5th Cir. 2001) 270 F.3d 203, earlier case recognizing individual right to bear arms] as holding or even suggesting that, for equal protection purposes, a felon has a ‘fundamental’ right to keep and bear arms, or that any governmental restriction on this right must meet a constitutional strict scrutiny test . . . . On the contrary, we read Emerson as excluding felons as a class from the Second Amendment’s protection of ‘the right of Americans generally to keep and bear their private arms as historically understood in this country . . . .’ ” (Darrington, supra, at p. 635.) We agree with this analysis. Defendant, by virtue of his prior conviction of an enumerated violent misdemeanor, is exempted from that group of citizens afforded protection under the Second Amendment; he does not have a fundamental right to bear arms.
As discussed in detail above, the court in Heller specifically declined to determine what standard of review would apply when a defendant challenges legislation on the grounds that it violates the Second Amendment right to bear arms, and instead applied a historical analysis which recognized the ability of the government to regulate the possession of firearms in certain situations, despite the right protected by the Second Amendment. The court did, however, decline to adopt the rational basis test for challenges based upon the Second Amendment, distinguishing between regulation of specific, enumerated rights (such as freedom of speech and the right to bear arms), and evaluating “constitutional commands that are themselves prohibitions on irrational laws” where “ ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.” (Heller, supra, 128 S.Ct. at p. 2818, fn. 27.)
Additionally, “[t]he crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.]” (Evans, supra, 49 Cal.App.4th at p. 1270.) California law restricts gun use for those previously convicted of enumerated misdemeanors only after providing counsel and notice of the restriction—protections that may not be afforded in all states. Also, the elements of the offenses may differ among the states. (See United States v. Moore (7th Cir. 2008) 543 F.3d 891, 897.) For these reasons, defendant and out-of-state misdemeanants are not similarly situated.
We therefore conclude that defendant’s equal protection challenge to section 12021, subdivision (c)(1)’s classification (limiting its applicability to those convicted of certain enumerated California misdemeanors) fails.
Even if strict scrutiny were to apply, and assuming that the distinction between California misdemeanants and those convicted of similar crimes in other states is not necessary to achieve a compelling state interest, rather than striking down the statute, the appropriate remedy would be to extend coverage of the statute to include those not included. As the court in Evans explained, “ ‘ “Where a statute is defective because of underinclusion . . . there exist two remedial alternatives; a court may either declare [the statute] a nullity . . . or it may extend the coverage of the statute to include those [excluded].” ’ [Citations.] Our Supreme Court has also recently recognized the power of the courts of this state not only to construe statutes in favor of constitutionality . . ., but also to ‘reform’ them. [Citation.] It has noted the frequent use of this judicial power in equal protection cases by the United States Supreme Court . . . .” (Evans, supra, 49 Cal.App.4th at p. 1273.)
Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.