California Court of Appeal Jan 22, 2021 No. E073612Unpublished
Filed 1/22/21 P. v. Townsend CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073612
v. (Super.Ct.No. RIF1602638)
ROBERT JAMES TOWNSEND, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.). Affirmed.
Helen S. Irza and Cathryn L. Rosciam, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and
Respondent.
1
After a bench trial, Robert James Townsend was convicted of numerous counts of
possessing firearms and ammunition by a convicted felon, along with various drug
offenses. He was sentenced to three years of probation.
On appeal, Townsend argues that his felon in possession of firearms and
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 9), and
possession of marijuana for sale (Health & Saf. Code, § 11359; count 10). For purposes
of the felon-in-possession convictions, the court found that Townsend suffered a prior
felony conviction in Texas. Townsend was sentenced to three years’ probation and
ordered to relinquish his firearms.
B. The Texas Prior
In June 2010, Townsend was charged in Texas with money laundering between
$100,000 and $200,000, a second degree felony. (Former Tex. Pen. Code, § 34.02, subd.
(e)(3).) In September 2010, he waived his right to a trial (among other rights) and
entered a plea of guilty to the offense, which the Texas court then approved and accepted.
The court questioned Townsend about the factual basis for his plea, and Townsend
admitted that all of the allegations in the indictment were true. The court found there to
be sufficient evidence to support a finding of guilt on the money laundering offense as
alleged in the indictment. The court deferred adjudication of guilt and placed Townsend
on six years of community supervision. Included within the terms of that community
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supervision were prohibitions against possessing any firearms or nonprescription
controlled substances and committing offenses against the laws of any other state.
In September 2016, the State of Texas moved to discharge Townsend from
community supervision, which the court granted. The Texas court discharged Townsend
“from all terms and conditions of Community Supervision as set forth in the court’s
judgment in this cause,” and further ordered that the discharge order “shall not in any
manner affect the finality of the Judgment of Conviction heretofore entered in this
cause.”
DISCUSSION
A. Prior Conviction
Townsend argues that his guilty plea to a felony in Texas does not constitute a
conviction under the felon-in-possession statute because adjudication was deferred. We
disagree.
When Townsend committed the present offenses, section 29800 provided 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, . . . who owns, purchases,
receives, or has in possession or under custody or control any firearm is guilty of a
felony.”1 (Former § 29800, subd. (a)(1).) Any person who is prohibited from possessing
a firearm under section 29800, subdivision (a)(1), also cannot “own, possess, or have
1 In 2017, section 29800 was amended to add that any person who has an outstanding warrant for a felony offense also is prohibited from possessing a firearm. (§ 29800, subd. (a)(1); Stats. 2017, ch. 17, § 44, eff. June 27, 2017.)
4
under [his or her] custody or control, any ammunition or reloaded ammunition.”
(§ 30305, subd. (a)(1).)
Townsend does not deny that when he committed the offenses in this case he was
on deferred adjudication community supervision in Texas after having pled guilty to
felony money laundering. He was not discharged from that community supervision until
September 2016—six months after he committed the present offenses. Townsend’s
felony conviction status after he committed the present offenses is not relevant to his
status as a convicted felon under the felon-in-possession statute. Instead, we look to
Townsend’s status when he committed the present offenses. (People v. Gilbreth (2007)
156 Cal.App.4th 53, 58 [when underlying offense occurred the defendant had a prior
misdemeanor conviction because the California felony conviction had been reduced to a
misdemeanor upon successful completion of probation]; People v. Lewis (2008) 164
Cal.App.4th 533, 536 [same under Oregon law].) We express no opinion about what
effect the discharge would have had on the determination of Townsend’s guilt or
innocence had it occurred before the present offenses were committed. Instead, we must
determine whether Townsend’s guilty plea to a felony in Texas that resulted in deferred
adjudication constitutes a conviction under California’s felon-in-possession statute.
More than 100 years of precedent establish “the general California rule that ‘“A
plea of guilty constitutes a conviction.” [Citation.]’ (People v. Banks (1959) 53 Cal.2d
370, 390–391[, superseded by statute on another ground as stated in People v. Park
court has already analyzed the issue of whether possession of a controlled substance
while armed can be committed without necessarily committing the offense of simple
possession of methamphetamine. In Williams, we applied the elements test and held that
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simple possession of methamphetamine is not a lesser included offense of possession of a
controlled substance while armed. (Williams, supra, 170 Cal.App.4th at pp. 644-645.)
Townsend asks us to revisit our decision in Williams based on decisions analyzing
whether simple possession is a lesser included offense of possession with the intent to
sell. Townsend does not cite any cases involving the greater offense of possession of a
controlled substance while armed and does not offer any reason why our analysis in
Williams is flawed. Nor do we perceive any flaws in our analysis.
The parties do not dispute that we apply the statutory elements test here because
the offenses arise out of a single course of conduct. As we explained in Williams, “a
violation of the greater offense under Health and Safety Code section 11370.1 may be
based on possession of heroin or cocaine, among other substances, that are not included
in Health and Safety Code section 11377, subdivision (a).” (Williams, supra, 170
Cal.App.4th at p. 645.) Simple possession of heroin and cocaine are crimes under a
different statutory provision. (Id. at p. 645, fn. 11; Health & Saf. Code, §§ 11350, subd.
(a), 11054, subd. (c)(11), 11055, subd. (b)(6).) “Thus, Health and Safety Code section
11370.1 may be violated without necessarily violating Health and Safety Code section
11377, subdivision (a).” (Williams, at p. 645.) Consequently, applying the statutory
elements test, a violation of simple possession of methamphetamine is not a lesser
included offense of possession of a controlled substance while armed. (Ibid.; People v.
Sosa (2012) 210 Cal.App.4th 946, 949-950 [simple possession conviction under Health &
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Saf. Code, § 11350, subd. (a), is not a lesser included offense of possession of a
controlled substance while armed for similar reasons].)
We decline to depart from our previous holding in Williams, supra, 170
Cal.App.4th 643, 644-645. We therefore conclude that under the statutory elements test
simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) is not a
lesser included offense of possession of a controlled substance while armed (Health &
Saf. Code, § 11370.1, subd. (a)).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. A guilty plea to a felony in another state that results in deferred adjudication constitutes a conviction under California's felon-in-possession statute. Additionally, simple possession of methamphetamine is not a lesser included offense of possession of a controlled substance while armed.
Issues
Does a guilty plea to a felony in Texas resulting in deferred adjudication constitute a conviction under California's felon-in-possession statute?
Is simple possession of methamphetamine a necessarily included lesser offense of possession of a controlled substance while armed?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A plea of guilty constitutes a conviction.”
“Indeed, it is settled that for purposes of a prior conviction statute, a conviction occurs at the time of entry of the guilty plea.”
“simple possession of methamphetamine is not a lesser included offense of possession of a controlled substance while armed.”