People v. Daniels

BROWN (Gerald), J.

Defendant has appealed from a judgment of conviction of possessing a firearm by a felon in violation of Penal Code, section 12021.

In 1949 defendant pleaded guilty to two counts of second degree burglary and was placed on probation; on September 21, 1950 he went into military service where he served for 21 months; on February 16, 1951 his probation was terminated and he was discharged under Penal Code, section 1203.3; his plea of “guilty” was withdrawn, a plea of “not guilty” was entered and the information was dismissed, in accordance with Penal Code, section 1203.4; this section provides that upon dismissal the defendant “shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. ’ ’

In 1952 and 1954 defendant acquired pistols which were registered according to legal requirements. On July 21, 1962, he purchased a revolver in Barstow; this gun was registered that day and he waited six days before taking delivery. The Penal Code required a three-day waiting period for delivery after purchase (Pen. Code, § 12072); also written notice mailed on the day of sale to the State Bureau of Criminal Identification and Investigation at Sacramento and the local police of facts regarding the gun and its purchaser (Pen. Code, § 12077). These procedures were followed in the instant case. It does not appear that any effort was made by public authorities to prevent defendant from taking delivery of the gun.

On August 17, 1962 the local police department questioned defendant about his purchase which he readily admitted and he was thereupon arrested, charged and convicted of violating Penal Code, section 12021 which provides that any per

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son who has been convicted of a felony and who owns or has in his possession a pistol, revolver or firearm capable of being concealed upon the person is guilty of a public offense. No charge had ever been made against defendant under section 12021 for his owning or possessing the pistols which he acquired in 1952 and 1954.

The question presented is whether defendant’s discharge and dismissal under Penal Code section 1203.4 constitute a defense to Penal Code, section 12021. This question was answered in the affirmative in 1960 in