DONDERO, J., Dissenting. I respectfully dissent.
My objection to the majority will focus on the analysis of the equal protection issue in the opinion. I do not need to discuss defendant’s Second Amendment challenge to the statute because, in my opinion, Penal Code section 12021, subdivision (c),1 cannot withstand scrutiny under the equal protection clause of the Fourteenth Amendment.
[1499]This is a case where defendant sustained a misdemeanor conviction in California for a violation of section 242 (battery) in 2006. He was placed on probation. In April 2008, while conducting a probation search, officers found four rifles in defendant’s home. They were a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. Defendant claimed he used the rifles for hunting game. He testified accordingly. He also represented to the officers he was never advised he could not possess weapons for hunting purposes. He was subsequently charged with a violation of section 12021, subdivision (c)(1), a felony, because he had previously been convicted of the misdemeanor battery offense in California within the past 10 years. The equal protection dilemma posed by section 12021, subdivision (c) is that it only imposes its consequences on persons who have sustained a conviction for certain enumerated misdemeanors in California. A conviction for similar misdemeanor conduct in other jurisdictions imposes no comparable consequence to a convicted individual.
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 [39 Cal.Rptr.3d 821, 129 P.3d 29], original italics; see also People v. Dial (2004) 123 Cal.App.4th 1116, 1120 [20 Cal.Rptr.3d 573]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529 [13 Cal.Rptr.3d 166].) “The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714 [63 Cal.Rptr.2d 173].) “Persons who are similarly situated must be treated alike. [Citation.] There is, however, no requirement that persons in different circumstances must be treated as if their situations were similar.” (People v. McCain (1995) 36 Cal.App.4th 817, 819 [42 Cal.Rptr.2d 779].) “This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654].) “In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202 [104 Cal.Rptr.3d 427, 223 P.3d 566].)
The majority seems to agree that section 12021, subdivision (c)(1) creates a classification among persons similarly situated, and a glaring classification it is. The statute makes it a felony for a person who previously was convicted of specific California misdemeanors to possess a firearm within 10 years of [1500]that conviction. Several of the enumerated crimes are wobblers, and if a person was convicted of these crimes as felonies, then the person would be charged under section 12021, subdivision (a), a statute that makes felony convictions in California or any other state or federally based jurisdiction a predicate for felony prosecution for possession of a firearm. The equal protection dilemma posed by section 12021, subdivision (c) is that it only imposes its consequences on persons who have sustained a conviction for certain enumerated misdemeanors in California. A conviction for similar misdemeanor conduct in other jurisdictions imposes no comparable consequence to a convicted individual.
However, persons who come to California after being convicted of a misdemeanor-like battery in another state can lawfully possess a firearm without a fear of felony prosecution. Only persons who sustain a conviction of section 242, for example, face potential felony prosecution.
Thus, for purposes of creating a felony offense for possession of a firearm that would otherwise be lawful, the statute treats differently defendants who have committed prior misdemeanor offenses in California, and those who have committed the same prior offenses in other states, with only the former incurring criminal sanctions. This is disparate treatment for similar conduct distinguished only by the fortuity of the geographical place of commission.2
In the recent decision of People v. Hofsheier, supra, 37 Cal.4th 1185, the court found violative of equal protection a statutory scheme which imposed mandatory registration under section 290 for a person convicted of consensual oral copulation under section 288a, subdivision (b)(1) (voluntary sexual act with a minor 16 years or older) but discretionary registration for a person convicted of consensual sexual intercourse under section 261.5. In each instance the criminal conduct is by law consensual, but the conviction of one triggers the mandatory lifetime registration requirement, while the other permits discretionary registration if the sentencing judge determines it is appropriate. Under our notion of equal protection of the laws, the state must advance “some rationality in the nature of the class singled out” for particular criminal prosecution. (Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [16 L.Ed.2d 577, 86 S.Ct. 1497].) Otherwise, the state would be allowed to discriminate between persons similarly situated by classifying their conduct under different criminal statutes. (Lawrence v. Texas (2003) 539 U.S. 558, 582 [156 L.Ed.2d 508, 123 S.Ct. 2472] (conc. opn. of O’Connor, J.).)
[1501]Also, in People v. McKee, the defendant challenged his involuntary commitment as a sexually violent predator (SVP) under Welfare & Institutions Code section 6600 et seq. He claimed it violated his equal protection rights because persons committed under the SVP determinations are treated less favorably than individuals similarly situated under civil commitment statutes like NGI (not guilty by reason of insanity) and MDO (mentally disordered offender). The court remanded defendant’s case back to the trial court because the claim had “merit” and required further review. (People v. McKee, supra, 47 Cal.4th 1172, 1196.) The court reasoned that persons civilly committed under SVP, NGI or MDO statutes pose substantial harm to the community. Yet, SVP commitments, especially as a result of Proposition 83, enjoy less opportunity to challenge the designation under the statutory scheme. Conceding the statutory differences between civil commitments under SVP and MDO statutes, the court observed, “the identification of [these] differences does not explain why one class should bear a substantially greater burden in obtaining release from commitment than the other.” (People v. McKee, supra, at p. 1203.)
Here, defendant’s underlying offense is misdemeanor battery in violation of section 242. The facts and circumstances of the underlying conviction are not presented in the record of this case. We cannot determine if the predicate misdemeanor offense involved a weapon of any type, or whether the offense involved any facts which suggested a weapons preclusion order was proper. It was a probation sentence, and we do know the conditions of probation did not specifically preclude possession of any weapons. Defendant did testify he understood he could possess the rifles in issue for hunting purposes. He was not impeached in his cross-examination with any documents or transcript challenging his belief he could keep weapons in his home. We also know that if defendant had been convicted of the equivalent of section 242 in Arizona or Nevada, for example, this possession case would not be on review now.
In summary, we have a situation where similarly situated persons, i.e., persons convicted of battery in California, and persons convicted of battery in any other state—both persons currently living in California—would result in disparate consequences because of where the individual suffered his misdemeanor conviction. This satisfied the first prerequisite for a meritorious claim under the equal protection clause, a classification that affects two similarly' situated groups in an unequal manner. {Cooley v. Superior Court, supra, 29 Cal.4th 228, 253; In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 R2d 549].)
We turn to an examination of the second level of equal protection analysis. “ ‘In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment ... we apply different levels of scrutiny to [1502]different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights ... are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]’ (Clark v. Jeter (1988) 486 U.S. 456, 461 [100 L.Ed.2d 465, 108 S.Ct. 1910]; see also Manduley [v. Superior Court (2002)] 27 Cal.4th [537,] 571 [33 Cal.Rptr.2d 10, 41 P.3d 3] [‘equal protection provisions in the California Constitution “have been generally thought... to be substantially [the] equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.” ’ (Fn. omitted.)].)” (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837 [16 Cal.Rptr.3d 420, 94 P.3d 551].)
With the recent rulings by the United States Supreme Court interpreting the Second Amendment, namely, District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and McDonald v. Chicago (2010) 561 U.S._ [177 L.Ed.2d 894, 130 S.Ct. 3020], courts must now consider what standard of review is constitutionally mandated in the evaluation of gun control legislation. As the majority in Heller observed: “Obviously, the [rational basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. ... If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” (Heller, supra, at p. 628, fn. 27, italics added, citation omitted.) It appears that the rational basis test may not apply to such review in light of Heller’s warning that constitutional rights guaranteed by the Second Amendment need to be assessed by a standard more elevated than rational basis. Indeed, the federal courts have recently indicated the test is one of heightened or intermediate scrutiny. (U.S. v. Skoien (7th Cir. 2010) 614 F.3d 638, 641 (en banc) [federal prosecution under 18 U.S.C. § 922(g)(9) (illegal possession of a firearm after being previously convicted of a crime of domestic violence)]; U.S. v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 96 [federal conviction, 18 U.S.C. § 922(k) (possession of a handgun with obliterated serial number)]; U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 [federal domestic violence misdemeanor evaluated under intermediate scrutiny]; Peruta v. County of San Diego (S.D.Cal. 2010) 678 F.Supp.2d 1046, 1057-1058.)3 This conclusion makes sense. While Second Amendment [1503]rights are not evaluated by strict scrutiny standards like regulations involving race, speech or alienage, they are enumerated specifically in the Constitution and considered as fundamental and individual. (See generally, Clark v. Jeter, supra, 486 U.S. 456, 461.) “To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.” (Ibid., italics added.)
Since this case involves the Second Amendment right of an individual to possess a firearm, as discussed above, the standard of review is intermediate or heightened scrutiny, a discussion absent in the majority opinion. Additionally, while Heller indicates there may be historical grounds for precluding convicted felons or mentally ill persons from possessing firearms, there is no evidence that individuals convicted of misdemeanors were precluded historically from possessing guns and rifles. Indeed, the value and necessity of rifles from the musket to the Winchester is almost mythical in the nation’s saga. Also, the weapons here were rifles located in defendant’s home. Consequently, we are not dealing with issues concerning a restriction on possession of firearms in a public place or location. Furthermore, we do not have an issue of commercial transactions in weapons where the state may wish to license such conduct. Based on this record, we cannot say defendant used any weapons in a violent act, domestic or otherwise, or a transaction involving illegal substances. Nor is there evidence in this record defendant was engaged in violent conduct previously, save a violation of section 242. The only evidence we have in this record is defendant had certain rifles in his home which he used for hunting purposes, and which he believed he had the right to possess for such purposes.
Consequently, I believe under the heightened scrutiny required for a restriction of a Second Amendment right, the government cannot justify this statute under the equal protection clause of the Fourteenth Amendment.
Indeed, I can go further, without conceding the issue of scrutiny. Even if the rational relationship test is the proper standard of review here, the government cannot present a reasonably conceivable state of facts that could [1504]provide a rational basis for the classification. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-182 [97 Cal.Rptr.2d 334, 2 P.3d 581].) If there are no plausible reasons for the classification, the classification must fail. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313 [124 L.Ed.2d 211, 113 S.Ct. 2096].) For example, a drugstore owner properly challenged a county ordinance that banned the sale of tobacco products at drugstores but not at grocery stores or “big box” stores containing licensed pharmacies on equal protection grounds. (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 439 [110 Cal.Rptr.3d 498].) And a statutory licensing scheme that imposes greater employment restrictions on care providers who had first degree burglary and second degree robbery convictions while not imposing the same on those convicted of murder, voluntary manslaughter, mayhem, or crimes involving the use of a handgun was also found to violate the equal protection clause. (Doe v. Saenz (2006) 140 Cal.App.4th 960, 991-992 [45 Cal.Rptr.3d 126].)
It simply cannot be considered a valid argument that individuals convicted of the enumerated misdemeanors in section 12021, subdivision (c) are more likely to use firearms improperly than those who commit similar crimes in the other states or federal jurisdictions and now reside in California. Geography does not determine dangerousness or likelihood of felonious behavior; yet that is the singular basis for the classification in section 12021, subdivision (c).
The majority argues that California provides due process protections such as the appointment of counsel and admonitions that advise California defendants they could be prosecuted for a felony if they possess firearms after the misdemeanor conviction. As to the latter contention, there is no evidence defendant here was ever advised he could not possess any firearm as a result of his battery conviction. The evidence of such admonition would be easy to establish with a transcript of the battery plea or sentencing. Yet the record is silent on this battery prior. In fact, the only evidence in this record is defendant believed he could keep his rifles in his home, as he testified. Regarding the appointment of counsel argument, we need to acknowledge all states, under the Fourteenth Amendment, are obligated to provide a defendant the right to counsel when one’s liberty is at issue. (Argersinger v. Hamlin (1972) 407 U.S. 25, 37 [32 L.Ed.2d 530, 92 S.Ct. 2006]; Gideon v. Wainwright (1963) 372 U.S. 335, 341 [9 L.Ed.2d 799, 83 S.Ct. 792].) Alternatively, this record does not reflect defendant had the assistance of counsel when he was convicted of the misdemeanor prior. And even if the record established defendant had been duly advised of the consequences of possession of a firearm imposed by section 12021, subdivision (c), the admonishment would not cure the equal protection violation associated with the disparate treatment given to California and out-of-state misdemeanants. (See People v. McKee, supra, Al Cal.4th 1172, 1203-1207 [providing certain “guarantees” does not necessarily satisfy equal protection requirements].)
[1505]It is also true the problems we discuss here can be easily resolved with legislative action. The Congress has previously determined that federal law should preclude persons previously convicted of a crime involving domestic violence from possessing a firearm. Under title 18 United States Code section 922(g)(9), it is a crime for any person “who has been convicted in any court of a misdemeanor crime of domestic violence . . . [to] possess in or affecting commerce, any firearm or ammunition.” Under section 921(a)(33)(A), the term “ ‘misdemeanor crime of domestic violence’ ” means an offense that “is a misdemeanor under Federal, State, or Tribal law,” and has an element of the use or attempted use of physical force or the threatened use of a deadly weapon on a particular group like a spouse, parent or partner. In other words, a broad definition of the class of crimes of other jurisdictions would resolve the equal protection issues of this statute. (United States v. Hayes (2009) 555 U.S. 415 [172 L.Ed.2d 816, 129 S.Ct. 1079].) Additionally, this was the approach used by the California Legislature in section 12021, subdivision (a), dealing with prior felony convictions that serve as a predicate for prohibiting subsequent firearm possession. As section 12021, subdivision (a)(1), states: “Any 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 . . . is guilty of a felony.” (Italics added.) Clearly, the fix to this equal protection problem is simple and has been done by our Legislature as well as the Congress. The two statutes indicated above avoid the equal protection issue and allow for similarly situated classes of convicted misdemeanants to be equally and fairly treated.
The majority contends this suggested fix would require local prosecutors to review statutes and records from other states or jurisdictions before they could make charging decisions. However, that review has already been adopted by federal prosecutors in the class of title 18 United States Code section 922(g) cases and the California Legislature has obligated prosecutors to assess “felony” convictions in “any other state, government, or country” under section 12021, subdivision (a)(1). Again, we are focusing on an enumerated right that is entitled to heightened scrutiny before it may be regulated by the Legislature. It is not a simple restriction on commercial behavior that is reviewed by the rational basis test. And, the burden to check records from other states is little enough to ask where failure to do so unequally subjects only those with California prior misdemeanor convictions to felony prosecution. In my view, the majority has not established a satisfactory and legally valid basis to discriminate, for purposes of the right to keep and bear arms, between similarly situated persons, previously convicted of a similar misdemeanor in California and another state, who then reside in this state.
[1506]Therefore, this conviction must be reversed because section 12021, subdivision (c)(1), is unconstitutional.
Appellant’s petition for review by the Supreme Court was denied June 8, 2011, S191745. Kennard, J., was of the opinion that the petition should be granted.
All statutory references will be to the Penal Code unless otherwise stated.
To further illustrate the point: A resident of Truckee, California, who is convicted of a qualifying misdemeanor battery offense, then some years later is found in possession of firearms, is subject to a felony conviction under section 12021, subdivision (c); in contrast, a resident of Reno, Nevada, 31 miles away, who is convicted of the same misdemeanor offense, and years later becomes a resident of Truckee, California, may possess the same firearms with no criminal penalty.
The majority refers to U.S. v. Vongxay (9th Cir. 2010) 594 F.3d 1111 for support on the issue of equal protection. However, that case dealt with the federal felon-in-possession statute. (Id. at p. 1118.) Heller seems to have no quarrel with felon restrictions. Additionally, as noted, [1503]almost all federal courts have opted to require an intermediate or heightened scrutiny analysis in this area. “Previously the Supreme Court used the rational basis standard of review to uphold a predecessor felon in possession statute against a Due Process claim. [Lewis v. United. States (1980) 445 U.S. 55 [63 L.Ed.2d 198, 100 S.Ct. 915].] . . . [S]everal courts suggest that the intermediate test is now applicable when evaluating a Heller-based equal protection challenge. See United States v. Schultz, 2009 WL 35225 at [5]; see also United States v. Bledsoe, No. SA08-CR-13(2), 2008 WL 3538717 (W.D.Tx. August 8, 2008). This court agrees that [the statute] should be reviewed under intermediate scrutiny.” (United States v. Radencich (N.D.Ind., Jan. 20, 2009, No. 3:08-CR-00048(01)RM) 2009 WL 127648, p. [4].) Importantly, Vongxay did not face a felony statute that criminalized only individuals convicted in one state, while excusing the same classes of convicted persons in all the other states.