People v. Shear

Opinion

— A jury convicted defendant Mark Russell Shear of being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), hereafter section 12021(a)(1); all further undesignated section references are to the Penal Code) based in part on proof that he had been convicted of the felony of “aggravated assault” in Arizona in May 1989. The trial court granted probation, including 120 days in county jail or a custody alternative program.

Defendant contends that reversal is required because: (1) It was not shown beyond a reasonable doubt that the acts giving rise to his Arizona conviction would have been a crime, much less a felony, if committed in California; and (2) pursuant to the provisions of an Arizona statute, his right to possess a

Testifying on his own behalf, defendant stated that his father, who owned the residence defendant had lived in since 1995, also owned the handgun. Defendant did not put it where it was found and did not know it was there.

According to defendant, the officers executed the search warrant at 6:00 a.m., waking him. He was still confused and sleepy when he talked to them. He said the gun was his because he knew it was his father’s gun and he had seen it before; he just didn’t know it was up on top of the cabinet. He tried to say that it was actually his father’s, but never got the chance.

Defendant testified that the police warned him during the 1996 search that he could not legally possess firearms, but that the officer who said that “was not positive. She didn’t positively say that I couldn’t.” The rifle they found in that search was a family heirloom given as a present to his seven-year-old son.

Defendant admitted that he had pleaded guilty to a felony in Arizona, but asserted that his plea agreement included a provision that successful probation would restore all his rights.

Discussion

Section 12021(a)(1) provides in part: “Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”

Defendant contends that the Arizona felony of which he was convicted would not be a felony in California, because aggravated assault may be committed in Arizona merely by intentionally placing another person in “reasonable apprehension of imminent physical injury” with the use of “a deadly weapon or dangerous instrument” ( Ariz. Rev. Stat. §§ 13-1203 , subd. A., 13-1204, subd. A.2. (1989)), and this does not necessarily entail either the use of physical force or the intent to commit a battery, as does felony assault in California. As will appear, under section 12021(a)(1) it does not matter whether defendant is right. The statute is satisfied if a defendant has been convicted of a felony under the law of any state, regardless of whether the offense would have been punishable as a felony in California.

In People v. Lang (1989) 49 Cal.3d 991 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ], our Supreme Court, construing a number of penal statutes dealing with prior out-of-state felony convictions, held: “In the absence of limitation, a reference to ‘prior felony convictions’ is deemed to include any prior conviction which was a felony under the laws of the convicting jurisdiction.” (Id. at pp. 1038-1039.) Among the decisions the court cited with approval to exemplify this rule is Domenico. (Id. at p. 1039.)

In light of Domenico and Lang, we conclude that defendant may not attack his conviction for violation of section 12021(a)(1) by showing that his Arizona offense would not have been a felony in California. The undisputed fact that the conviction was a felony in Arizona is sufficient to satisfy the statute.

Deféndant contends: (1) under the full faith and credit clause of the United States Constitution, California must give full faith and credit to Arizona’s alleged restoration of his right to possess firearms in that state, and (2) doing so precludes his prosecution by California for possessing a firearm in this state. We conclude that even assuming an Arizona statute has restored defendant’s right to possess a firearm in that state, the full faith and credit clause does not bar California from prosecuting defendant under section 12021(a)(1).

The record does not make clear whether defendant’s right to possess a firearm in Arizona has actually been restored; however, for purposes of this appeal we shall presume it was. Prior to 1988, Arizona law provided: “Upon completion of the term of probation, or upon absolute discharge from imprisonment, and upon the completion of payment of any fine or restitution

As to full faith and credit, the court first found that the workers’ compensation laws of the two jurisdictions conflicted materially and that both claimed to be compulsory and exclusive on the facts presented. (Alaska Packers Asso., supra, 294 U.S. at p. 544 [55 S.Ct. at p. 522, 79 L.Ed. at p. 1050].) The court then gave the following general analysis of the problem: “It has often been recognized by this Court that there are some limitations upon the extent to which a state will be required by the full faith and credit clause to enforce even the judgment of another state, in contravention of its own statutes or policy. [Citations.] [¶] In the case of statutes, the extra-state effect of which Congress has not prescribed, where the policy of one state comes into conflict with that of another, the necessity of some accommodation of the conflicting interests of the two states is still more apparent. A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own. Unless by force of that clause a greater effect is thus to be given to a state statute abroad than the clause permits it to have at home, it is unavoidable that this Court determine for itself the extent to which the statute of one state may qualify or deny rights asserted under the statute of another. [Citations.] [¶] The necessity is not any the less whether the statute and policy of the forum is set up as a defense to a suit brought under the foreign statute or the foreign statute is set up as a defense to a suit or proceedings under the local statute. In either case, the conflict is the same. In each, rights claimed under one statute prevail only by denying effect to the other. In both the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight.” (Alaska Packers Asso., supra, 294 U.S. at pp. 546-547 [55 S.Ct. at pp. 523-524, 79 L.Ed. at pp. 1051-1052], italics added.)

Applying these principles, the court found that California’s interest in the present matter outweighed Alaska’s: “The enactment of the present statute of California was within state power and infringes no constitutional provision.

Finally, the court reiterated the rule of Alaska Packers Asso., in Pacific Ins. Co., supra, 306 U.S. 493 [ 59 S.Ct. 629 , 83 L.Ed. 940 ], Again the court had to decide whether the California Supreme Court correctly upheld a California workers’ compensation award in the face of a claim that a foreign jurisdiction’s law governed; however, in this case the employee worked for a foreign (Massachusetts) corporation and suffered injury while on assignment in California. (Pacific Ins. Co., supra, at pp. 497-498 [59 S.Ct. at pp. 630-631, 83 L.Ed. at pp. 942-943].) Again the court affirmed the California court’s judgment.

The court first found, as in Alaska Packers Asso., that California and Massachusetts workers’ compensation laws conflicted materially and both claimed exclusivity. (Pacific Ins. Co., supra 306 U.S. at p. 499 [59 S.Ct. at pp. 631-632, 83 L.Ed. at p. 943].) The court then held that California law should control: “To the extent that California is required to give full faith and credit to the conflicting Massachusetts statute it must be denied the right to apply in its own courts its own statute, constitutionally enacted in pursuance of its policy to provide compensation for employees injured in their employment within the state. It must withhold the remedy given by its own statute to its residents by way of compensation for medical, hospital, and nursing services rendered to the injured employee, and it must remit him to Massachusetts to secure the administrative remedy which that state has provided. We cannot say that the full faith and credit clause goes so far. [¶] While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of

The analysis developed in this line of cases is now the settled doctrine of the United States Supreme Court in applying the full faith and credit clause to conflicts of state laws in general. (Baker v. General Motors Corp. (1998) 522 U.S. 222 , 230-232 [ 118 S.Ct. 657 , 662-663, 139 L.Ed.2d 580 , 590-591]; see Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797 , 818-819 [ 105 S.Ct. 2965 , 2978, 86 L.Ed.2d 628 , 646] [forum state may choose its own law despite full faith and credit clause, provided state has “ ‘significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair’ ”]; see generally, Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception (1997) 106 Yale L.J. 1965 , 1976-1978 [Supreme Court’s analysis reduces full faith and credit clause to a mere screening device as to state laws]; Gardbaum, New Deal Constitutionalism and the Unshackling of the States (1997) 64 U. Chi. L.Rev. 483 , 561-563 [Supreme Court’s analysis renders forum state’s prima facie right to choose its own law virtually irrebuttable despite full faith and credit clause].)

In light of the above, defendant’s full faith and credit clause argument must fail. Section 12021(a)(1) deals with “ ‘a subject matter concerning which [California] is competent to legislate.’ ” (Baker v. General Motors Corp., supra, 522 U.S. at p. 232 [118 S.Ct. at p. 663, 139 L.Ed.2d at p. 592], quoting Pacific Ins. Co., supra, 306 U.S. at p. 501 [59 S.Ct. at p. 632, 83 L.Ed. at p. 944].) It is “the expression of [California’s] domestic policy, in terms declared to be exclusive in its application to persons and events within the state.” (Pacific Ins. Co., supra, 306 U.S. at pp. 502-503 [59 S.Ct. at p. 633, 83 L.Ed. at p. 945].) California’s “significant contact” with defendant, a California resident, creates a “ ‘state interest[], such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” (Phillips Petroleum Co. v. Shutts, supra, 472 U.S. at p. 818 [105 S.Ct. at p. 2978, 86 L.Ed.2d at p. 646].)

Moreover, California’s enforcement of the right conferred by the Arizona statute would be “obnoxious to the public policy of the forum.” {Clapper, supra, 286 U.S. at p. 160 [52 S.Ct. at p. 576, 76 L.Ed. at p. 1036].) There can be few more significant public policies of this state than that of protecting the safety of its citizens by barring convicted felons, persons who have proved unfit to be entrusted with firearms, from possessing them. “The purpose of [section 12021] is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes. [Citation.] Due to the potential for death or great bodily injury from the improper use of firearms, public policy generally abhors even momentary possession of guns by convicted felons who, the Legislature has found, are more likely to misuse them.” (People v. Pepper (1996) 41 Cal.App.4th 1029 , 1037-1038 [ 48 Cal.Rptr.2d 877 ].)

Arizona, on the other hand, has no current contact with defendant. Nor does it have any discernible interest in “projecting] its laws across state lines so as to preclude [California] from prescribing for itself the legal consequenceQ” of possession of firearms by a convicted felon in California. (Pacific Ins. Co., supra, 306 U.S. at pp. 504-505 [59 S.Ct. at p. 634, 83 L.Ed. at p. 946].)

Disposition

The judgment is affirmed.

Morrison, J., and Kolkey, J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 28, 1999.