Opinion
HOLLENHORST, Acting P. J. A jury convicted defendant Mills of possession of a firearm by a convicted felon in violation of Penal Code section 12021, subdivision (a). He appeals contending that (1) the 1990 amendment to Penal Code section 12021, subdivision (a) is an ex post facto law as to him, and (2) his conviction should be reversed on due process and equal protection grounds because he was not actually personally notified of the amendment to the law, while persons actively on probation were notified.
[1282]Facts
The relevant facts are simple and undisputed. On July 6, 1981, defendant was convicted of possession of marijuana for sale, a felony. (Health & Saf. Code, § 11359.) He was placed on probation for five years.
At the time of defendant’s 1981 conviction, Penal Code section 12021, subdivision (a) read as follows: “Any person who has been convicted of a felony under the laws of . . . California . . . who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense . . . .” (Italics added.)
In 1989, Penal Code section 12021, subdivision (a) was amended, effective January 1, 1990, to read as follows: “Any person who has been convicted of a felony under the laws of . . . California . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (Stats. 1989, ch. 1044, § 3, italics added.)
In July 1990, defendant brought a shotgun into a sporting goods store to have the gun repaired. The proprietor of the store, a California Highway Patrol officer, subsequently inquired about defendant’s prior record. The officer then learned of the prior felony conviction.
Defendant was arrested on July 19, 1990, for being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a). His trial and this appeal followed.
Introduction
The United States Constitution (art. I, §§ 9 and 10) and the California Constitution (art. I, § 9) prohibit the passage of ex post facto laws. The clearest example of such a law is one which defines a new crime and applies its definition retroactively to conduct which was not criminal at the time it occurred.
“Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their-meaning until explicitly changed. [Citations.] The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation. [Citations.] [][] In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring [1283]before its enactment, and it must disadvantage the offender affected by it.” (Weaver v. Graham (1981) 450 U.S. 24, 28-29 [67 L.Ed.2d 17, 23, 101 S.Ct. 960].)
There is no significant difference between the federal and state constitutional provisions. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297 [279 Cal.Rptr. 592, 807 P.2d 434].) “ ‘[T]he principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 586 [280 Cal.Rptr. 631, 809 P.2d 290].)
Most of the difficulties in applying the constitutional provisions occur in the interpretation of the prohibitions against retroactively increasing punishment for a crime which carried a lesser penalty when committed. (1 LaFave & Scott, Substantive Criminal Law (1986) § 2.4, p. 136.) Defendant attempts to bring himself within this category.
Was Defendant’s Punishment Retroactively Increased?
Defendant contends that the 1990 change in the law increases the punishment for his 1981 conviction, and is therefore a prohibited ex post facto law. He relies on Collins v. Youngblood (1990) 497 U.S. 37, 41 [111 L.Ed.2d 30, 38, 110 S.Ct. 2715]. In that case, the Supreme Court discusses the meaning of the ex post facto clause of the federal Constitution. (U.S. Const., art. I, § 10.) The court begins with the meaning of the term: “Although the Latin phrase lex post facto' literally encompasses any law passed ‘after the fact,’ it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender aifected by them.” (Id., at p. 41 [111 L.Ed.2d at p. 38.)
The court then quotes the accepted definition of ex post facto laws from the early case of Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390-392 [1 L.Ed. 648, 650]: “ ‘1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.'" (Collins v. Youngblood, supra, 497 U.S. 37, 42 [111 L.Ed.2d 30, 38-39] quoting Calder [1284]v. Bull, supra, 3 U.S. (3 Dall.) 386, 390-392 [1 L.Ed. 648, 650]. Italics in original.)
Relying on the second and third elements of the Calder definition,1 defendant states his position clearly: “When appellant was convicted of a felony in 1981 one of the legal consequences of that conviction was the penalty and disability of owning or possessing a concealable firearm, and any attempt to increase or make that disability more onerous retroactively by precluding possession of all firearms constitutes an ex post facto law.”
Our own Supreme Court has recently quoted Collins in determining whether Proposition 115 should be applied to prosecutions of crimes committed before its effective date. (Tapia v. Superior Court, supra, 53 Cal.3d 282.) The court noted that the U.S. Supreme Court “rejected the proposition that a law violates the ex post facto clause simply because it eliminates a ‘substantial protection’ existing at the time an offense was committed.” Accordingly, “[a]fter Collins, we need not determine ‘how substantial is the right that the statute impairs and how significant is that impairment.’ [Citation.] Instead, we can resolve such challenges by applying the exclusive Calder categories.” (Id., at pp. 294-295.) Applying those categories, the court held that certain provisions of Proposition 115 which defined conduct as a crime, increased punishment for a crime, or eliminated a defense, could not be applied retroactively because “[application of these provisions to crimes committed before the measure’s effective date would be ‘retrospective’ because each would change the legal consequences of the defendant’s past conduct.” (Id., at p. 298.) Other provisions, relating to the conduct of trials, could be applied to pending cases, regardless of when the crime was committed. (Id., at pp. 299-300; cf. People v. Wharton, supra, 53 Cal.3d 522, 586.)
The United States Supreme Court also reaffirmed the Calder categories in Miller v. Florida (1987) 482 U.S. 423 [96 L.Ed.2d 351, 107 S.Ct. 2446]. In that case, sentencing guidelines were increased between the date of the crime and the date of sentencing, and the court held that the application of the new guidelines to defendant was ex post facto because it was retrospective and it disadvantaged defendant. (Id., at p. 430 [96 L.Ed.2d at p. 360].) The court said: “A law is retrospective if it ‘changes the legal consequences of acts completed before its effective date.’ ” (Ibid., quoting Weaver v. Graham, [1285]supra, 450 U.S. 24, 31 [67 L.Ed.2d 17, 24].) Since the change in sentencing guidelines retroactively increased the punishment for defendant’s crime, it was retrospective for purposes of the ex post facto test.
In In re Ramirez (1985) 39 Cal.3d 931 [218 Cal.Rptr. 324, 705 P.2d 897], our Supreme Court also considered whether a change in a sentencing statute was retrospective under the Weaver test. The court stated that the issue was “whether a new statutory plan for awarding sentence reduction credits may be applied, without violation of the ex post facto clauses of the California or federal Constitutions, to prisoners who committed crimes before the effective date of the new scheme. We conclude that it may.” (Id., at p. 932.)
The court applied the test stated in Weaver v. Graham, supra, 450 U.S. 24, 29 [67 L.Ed.2d 17, 23], to determine whether the new law was retrospective. We find the court’s discussion determinative here: “For a law to be retrospective, ‘it must apply to events occurring before its enactment.’ [Citation.] A retrospective law violates the ex post facto clauses when it ‘substantially alters the consequences attached to a crime already completed, and therefore changes “the quantum of punishment.” ’ [Citations.] [f] We conclude that the 1982 amendments are not retrospective and therefore do not violate the ex post facto clauses. Petitioner, citing Paez [In re Paez (1983) 148 Cal.App.3d 919 (196 Cal.Rptr. 401)], contends that the 1982 amendments relate to the original offense, not to the infraction committed in prison. We disagree. It is true that the 1982 amendments apply to petitioner only because he is a prisoner and that he is a prisoner only because of an act committed before the 1982 amendments. Nonetheless, the increased sanctions are imposed solely because of petitioner’s prison misconduct occurring after the 1982 amendments became effective. In other words, the 1982 amendments apply only to events occurring after their enactment. If any aspect of prison life is unconnected to a prisoner’s original crime, it would seem to be the sanctions for his misconduct while in prison. Accordingly, the 1982 amendments, which change the sanctions for that misconduct, do not relate to petitioner’s original crime and are not retrospective under Weaver.” (In re Ramirez, supra, 39 Cal.3d 931, 936-937, first italics added.)
Paraphrasing the court’s reasoning here, it is true that the new statute only applies to defendant because he has the status of a convicted felon, and he achieved that status before that statute became effective. Nevertheless, the new statute only applies to an event occurring after its effective date, i.e. defendant’s possession of a shotgun six months after the statute became effective. The event, possession of a shotgun by a felon, occurred after the effective date of the statute, and the 1989 amendment was not retroactive.
[1286]The issue of whether a new law increases the punishment for a prior crime is not a new issue. The courts have generally held that a statute which increases the punishment of prior offenders is not an ex post facto law if it is applied to events occurring after its effective date. “Some ex post facto questions of the increased-punishment type have arisen in connection with the passage of habitual criminal laws, which impose enhanced penalties for later offenses if the defendant has previously been convicted of one or more crimes. If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only for the new crime B, which was committed after the statute was passed. Similarly, it is permissible to define a crime as limited to certain conduct engaged in by persons who have theretofore been convicted of some other offense and to apply the statute to one whose earlier offense and conviction predated the enactment of this statute.” (1 LaFave & Scott, op. cit. supra, § 2.4, p. 139.)
Here defendant was convicted of conduct, his possession of a shotgun, occurring after the effective date of the statute. His conduct was a violation of the new statute, rather than an increase of punishment for the earlier offense of possessing marijuana for sale.2 Although the statute only applied to him because of his status as a person convicted of a felony, and the felony conviction occurred before the statute became effective, the fact of his prior conviction only places him into a status which makes the new law applicable to him. The legal consequences of his past conduct were not changed—only a new law was applied to his future conduct.
The dissent concedes that this argument would have merit if the amendment to Penal Code section 12021, subdivision (a) had provided that no [1287]one could possess a firearm after January 1, 1990, but it would find the statute retroactive because it only applies to previously convicted felons. This argument is really an equal protection argument, and long-settled principles allow the Legislature to limit the application of laws to a uniform class of persons such as previously convicted felons. (People v. Dubose (1974) 42 Cal.App.3d 847 [117 Cal.Rptr. 235]; People v. James (1925) 71 Cal.App. 374, 378-379 [235 R 81].) Since the law acts uniformly on all persons in the affected class, there is no equal protection issue here.
“In the search for more effective criminal sanctions, it is common for legislatures to prescribe heavier punishments upon offenders who have previously violated the law. Statutes embodying such provisions frequently have been attacked as ex post facto laws, but are generally sustained. A statute prescribing a heavier punishment for second offenders is not invalid as ex post facto, even though the first offense was previously committed; the punishment is of the second offense only, but is more severe because of the class in which the defendant placed himself by his first offense. A statute providing permanent incarceration for persons with multiple convictions, even though some of the offenses were committed previous to the enactment, is not an ex post facto law. As in the case of second offense statutes, punishment is for the new crime only, but is more severe because the defendant is an habitual criminal. A penalty may not be increased, however, because of prior convictions for a specific crime, when the new offense was committed prior to an amendment of the habitual criminal statute to include the old crime among the felonies enumerated.” (Sutherland, Statutory Construction (4th ed. 1986) § 42.08, p. 461, italics added.)
The California cases follow these general principles. For example, in People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736], overruled on different grounds in People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150], a serious felony enhancement (Pen. Code, § 667) was based on a prior burglary conviction which occurred before the enhancement was enacted by Proposition 8. The court said: “The basic purpose of the section—the deterrence of recidivism—would be frustrated by a construction which did not take account of prior criminal conduct. No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for enhancement was committed before the initiative passed. In the context of habitual criminal statutes, ‘increased penalties for subsequent offenses are attributable to the defendant’s status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.’ [Citation.]” (37 Cal.3d at p. 833; see, also, People v. Williams (1983) 140 Cal.App.3d 445, 448 [183 Cal.Rptr. 497]; People v. Dolliver [1288](1986) 181 Cal.App.3d 49, 57 [225 Cal.Rptr. 920]; 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 1509, pp. 1794-1796.)
In the precise context here, former Penal Code section 12021, subdivision (a) withstood an ex post facto attack in People v. James, supra, 71 Cal.App. 374. The court said: “A law is not objectionable as ex post facto which in providing for the punishment of future offenses authorizes the offender’s conduct in the past to be taken into account and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first; and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed. [Citations.] In such case it is the second or subsequent offense which is punished, not the first.” (Id., at p. 378.) The same is true here.3 (People v. Camperlingo (1924) 69 Cal.App. 466, 471-472 [231 P. 601], citing Ex parte Gutierrez (1873) 45 Cal. 429; see, generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) §§ 16-19, pp. 19-25; 2 Witkin & Epstein, op. cit. supra, § 1098, pp. 1267-1271.)
Similarly, People v. Venegas (1970) 10 Cal.App.3d 814 [89 Cal.Rptr. 103], also rejected an ex post facto challenge to an earlier amendment to Penal Code section 12021. The court said: “A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation. [Citation.] It has been held that drawing upon a felony conviction even prior to the time there was any legislation prohibiting possession of a firearm concealable upon the person by one previously convicted of a felony [citation] or a felony conviction prior to its effective date [citation] does not render the new law a bill of attainder or an ex post facto law. The crime for which the defendant is punished in an instance such as we have here is not the earlier felony, but the new and separate crime of which the prior felony conviction is only a constituent element. Without the defendant’s commission of new and additional acts after he has notice of the new legislation, the statute passed or amended after the constituent felony conviction would not come into play.” (10 Cal.App.3d at p. 823.)
[1289]As this court said in People v. Mink, supra, 173 Cal.App.3d 766, 770, “ ‘The law is well established that... the increased penalty for a prior is attributable solely to the new, rather than the former, crime and its purpose is to discourage recidivist criminal conduct. . . ”
As discussed in the next section, defendant knew, or should have known, that it was a crime for him to possess a shotgun after January 1, 1990. He had fair warning of the new law, and he did possess a shotgun after that date. (In re Ramirez, supra, 39 Cal.3d 931, 938.) His conviction for doing so was not retrospective. Although the new law applied to him because he had the status of a felony offender, he was not additionally punished for possessing marijuana for sale but rather was punished for committing a new crime, possession of a firearm by a felon, after the amendment to the statute became effective. (See, generally, 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 419-420, pp. 601-602.)
Was the Probation Department Required to Give Defendant Personal Notice of the New Law?
Defendant also argues that he was deprived of equal protection of the law because he was not actually personally notified of the 1989 amendment to Penal Code section 12021, subdivision (a), while personal notice was given to persons on active probation. He also contends that he was deprived of due process because he was convicted without notice of the law, citing Lambert v. California (1957) 355 U.S. 225 [2 L.Ed.2d 228, 78 S.Ct. 240].4
As noted above, the 1989 amendment to Penal Code section 12021, subdivision (a) does not violate equal protection principles because it applies to convicted felons as a class. Defendant advances another equal protection argument—that the Inyo County Probation Department, having embarked on a program to notify current probationers of the new law, was required by equal protection principles to notify all previous probationers as well.
We find no merit in this contention. Presumably, there were four classes of persons with prior convictions in the county—persons on active probation, persons who had completed their probation (whether or not probation was [1290]formally terminated under Pen. Code, § 1203.4), persons who had prior convictions but who had not been on probation in this country and parolees. The county probation department keeps records of persons under its supervision, and for five years thereafter. (Pen. Code, § 1203.10.) The department determines the level and type of supervision for persons under its control, taking into account the court orders and the objectives stated in Penal Code section 1202.7. (Pen. Code, § 1202.8.)
The probation department has no general duty to advise persons on probation of changes in the law that might affect their future conduct, but a probation officer testified here that the department had notified active probationers of the change in the law.5
We think that the decision to notify persons on active probation of the change in California law, and not the other classes mentioned above, was reasonably related to the goals of probation (Pen. Code, § 1202.7), and was within the probation department’s discretion to determine the level and type of supervision to be given. (Pen. Code, § 1202.8.) The probation department’s decision was not arbitrary, and we think that active probationers was a reasonable classification for equal protection purposes.6 (Boles v. Superior Court (1974) 37 Cal.App.3d 479,484-485 [112 Cal.Rptr. 286].) In any event, defendant has not shown, and cannot show, an intentional or purposeful discrimination. (Snowden v. Hughes (1944) 321 U.S. 1, 8 [88 L.Ed. 497, 503, 64 S.Ct. 397].)
We also disagree with defendant’s contention that due process requires actual notice of the law he is charged with violating. Although we assume, for purposes of this discussion, that defendant had no actual knowledge of the amendment to Penal Code section 12021, subdivision (a), actual knowledge is not an element of the offense.7 Thus in People v. Snyder, supra, 32 Cal.3d 590, our Supreme Court held that “lack of actual knowledge of the [1291]provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. [Citations.] [f] In the present case, defendant was presumed to know that it is unlawful for a convicted felon to possess a concealable firearm. ...[][]... Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.” (Id., at p. 593.8) Under defendant’s view of the law, “‘[i]f 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.’ ” (Id., at p. 593.) As the old saying goes, “Ignorance of the law is no excuse.” (Pen. Code, § 26; CALJIC No. 4.36.)
Disposition
The judgment is affirmed.
McDaniel, J.,* concurred.
With regard to the increased punishment theory, Collins states: “Although increased punishments are not mentioned explicitly in the historical sources, the Court has never questioned their prohibition, apparently on the theory that ‘[t]he enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty.’ ” (Collins v. Youngblood, supra, 497 U.S. 37, 44 [111 L.Ed.2d 30, 40].)
Appellant and the dissent argue that the disabilities resulting from the prior crime were increased by amendment of the statute, and thus the punishment was increased. They rely on People v. Bell (1989) 49 Cal.3d 502, 542-546 [262 Cal.Rptr. 1, 778 P.2d 129], in which our Supreme Court held that the prohibition imposed by Penal Code section 12021 at the time of conviction is a disability of a conviction which is not released by honorable discharge from the Youth Authority. There was no ex post facto issue in Bell. (See, also, Bradford v. Cardoza (1987) 195 Cal.App.3d 361, 365 [240 Cal.Rptr. 648]; People v. Taylor (1960) 178 Cal.App.2d 472, 480 [3 Cal.Rptr. 186].)
Even though the prohibition imposed by Penal Code section 12021 is a disability, this court’s opinion in People v. Mink (1985) 173 Cal.App.3d 766 [219 Cal.Rptr. 291], makes it clear that “it is the second or subsequent offense which is punished, not the first; and ... the increased punishment provided for subsequent offenders is not an additional disability attaching to the first offense, but an appropriate penalty for the person who, after conviction of one crime commits another.” (Id., at p. 771, quoting People v. Johnson (1979) 95 Cal.App.3d 352, 357-358 [157 Cal.Rptr. 150]. Italics in original. Internal quotation marks omitted.)
“‘Penal Code, section 12021, is part of the legislative scheme originally promulgated in 1917 . . . and commonly known as the Dangerous Weapons Control Act. . . . The clear intent of the Legislature in adopting the weapons control act was to limit as far as possible the use of instruments commonly associated with criminal activity [citation] and, specifically, “to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence.” [Citation.]’ . . . The law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible. [Citation.] It is evident that ‘the almost frivolous “burden” suffered by a convicted felon denied the “right" to carry a concealable weapon’ [citation] pales in comparison with the true disability suffered [in other cases].” (People v. Bell, supra, 49 Cal.3d 502, 544.)
In Lambert, Justice Douglas held that a provision of the Los Angeles Municipal Code that required registration of people previously convicted of a felony was invalid under due process principles. The court held that defendant’s conduct was merely passive, and that actual notice of the duty to register was necessary to the validity of a conviction. While this case supports defendant’s position, we are obligated to follow the more specific precedents, discussed below, that find that actual knowledge of the statute, or actual knowledge of the convicted felon status, are not elements of the offense.
The officer also testified that the probation department was not aware of the federal Gun Control Act of 1986 (18 U.S.C.A. § 921 et seq.) while defendant was on probation, and it had accordingly not notified him of the restrictions under that law.
The line has to be drawn somewhere, and the alternative of notifying active probationers and persons with closed files whose probation had terminated within five years (Pen. Code, § 1203.10), but not those who had older closed files, seems even more arbitrary. After all, the probation department is still attempting to influence the behavior of persons currently under active probation to achieve the goals of Penal Code section 1202.7.
However, the court in Snyder said: “No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.] With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense. [Citations.]” (People v. Snyder (1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].) Knowledge of the presence of the weapon is therefore required. (CALJIC No. 12.43.)
The court also points out that “[t]he federal statute has been uniformly interpreted as requiring only that the defendant was in fact a convicted felon, and not that he actually knew he was a felon.” (Id., at p. 594.)
Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chairperson of the Judicial Council.