Filed 4/19/17 P. v. Westcott CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Trinity)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH DANIEL WESTCOTT,

Defendant and Appellant.
C082652

(Super. Ct. No. 15F0215A)




A jury found defendant Joseph Daniel Westcott guilty of cultivating marijuana and being a felon in possession of ammunition. On appeal, he contends his sentence for being a felon in possession of ammunition was unauthorized because his prior Michigan conviction was for a misdemeanor and not a felony. He also contends the trial court erred when it instructed the jury that he was previously convicted of a felony, rather than instructing the jury that it was required to find whether he was previously convicted of a felony. We conclude the trial court erred in instructing the jury that defendant’s prior conviction was a felony; however, that error was harmless beyond a reasonable doubt because under Michigan law, defendant’s prior conviction was a felony. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2014, Trinity County Sheriff’s Deputy Jacob Hess and Child Protective Services employees conducted a welfare check at defendant’s motor home after receiving a call that he and his partner, Amanda Downing, had duct taped their daughter to a highchair. When defendant opened the gate to allow them onto the property, Deputy Hess saw a large amount of marijuana hanging on and around the motor home. Upon entry of the motor home, Deputy Hess saw more marijuana hanging from the walls and on the floor and tables.
After obtaining a search warrant, Trinity County Sheriff’s Corporal Christopher Compton conducted a more thorough search of the motor home. During the search, he found a Crown Royal bag filled with various types of ammunition in a cupboard.
Before trial on charges of cultivating marijuana and being a felon in possession of a firearm, defendant told the court that he thought that his prior felony conviction from Michigan was expunged. At trial, the prosecution submitted certified court documents evidencing defendant’s 2004 Michigan conviction for attempted possession of marijuana with the intent to distribute. Defendant also testified that he was convicted of a felony in Michigan, and his only defense to the possession of ammunition charge was that he did not possess the ammunition. Defendant never presented proof of an expungement at trial. Additionally, in instructing the jury on the felon in possession charge, the court instructed the jury (without objection) that defendant’s prior conviction of “manufacturing of marijuana is the same as a conviction for a felony.”
The jury found defendant guilty of cultivating marijuana and being a felon in possession of ammunition. The trial court placed him on three years of probation.
DISCUSSION
I
Defendant Was Not Harmed By The Trial Court’s Instruction
Regarding His Prior Felony Conviction
On appeal, defendant argues for the first time that his prior Michigan conviction was an issue of fact properly left to the jury to decide. Specifically, he contends the trial court erred by instructing the jury that he had a prior felony conviction, and this error prejudiced him because the certified record of his conviction showed he was convicted of a misdemeanor. We agree with defendant’s argument that his status as a felon was a factual question properly left to the jury; however, we disagree that he was harmed by the trial court’s instruction.
We independently review assertions of instructional error. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) A trial court bears a sua sponte duty to instruct the jury on every material element of an offense. (People v. Flood (1998) 18 Cal.4th 470, 480-481.) An instruction that forecloses jury inquiry into an element of the offense and relieves the prosecution from the burden of proving it violates the Fourteenth Amendment. (Carella v. California (1989) 491 U.S. 263, 265-266 [105 L.Ed.2d 218, 222].) An instructional error that improperly directs a finding upon a particular element is subject to the Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] prejudice standard, which examines whether the error was harmless beyond a reasonable doubt. (Flood, at pp. 493-494, 502-503.)
The trial court instructed the jury that defendant’s prior conviction was “the same as a conviction for a felony.” Thus, the instruction conclusively presumed that the prosecution had met its burden of proving defendant was a felon and completely removed the issue from the jury’s consideration. This was error, but we nevertheless conclude the instruction was harmless beyond a reasonable doubt because under Michigan law defendant was guilty of a felony.
In 2004, defendant pled guilty to attempted possession of marijuana with the intent to distribute in violation of the Michigan Controlled Substances Act section 333.7401, subdivision (2)(d)(ii), and the Michigan Penal Code section 750.92 (general attempt statute). Section 333.7401, subdivision (2)(d)(ii) punishes a violation of the statute “by imprisonment for not more than 7 years or a fine of not more than $500,000.00, or both.” A defendant is guilty of a misdemeanor under the general intent statute if the offense attempted is punishable by “state prison for a term less than 5 years, or imprisonment in county jail or by a fine.” (§ 750.92, subd. 3.) However, a defendant is guilty of a felony if the offense attempted is punishable by a term of imprisonment for “5 years or more.” (§ 750.92, subd. 2.)
Defendant argues that because section 333.7401, subdivision (2)(d)(ii) can be punished by a just a fine, subdivision 3 of the general attempt statute applied and he was guilty of a misdemeanor. The People counter that the Michigan Controlled Substances Act provides its own punishment for an attempted violation of the drug laws, found in section 333.7407a, and defendant is guilty of a felony under that provision.
Neither party’s argument is persuasive. Defendant did not plead to a violation of section 333.7407a, he pled to a violation of sections 333.7401, subdivision (2)(d)(ii) and 750.92. Thus, the attempt provision found in the Michigan Controlled Substances Act is inapplicable to defendant’s case. Further, defendant’s attempted offense was not punishable by the punishments enumerated in subdivision 3 of the general attempt statute. Subdivision 3 applies to offenses punishable by “less than 5 years” or “imprisonment in the county jail or by fine.” A comma appears between the enumerated punishment of “less than 5 years” and “imprisonment in the county jail or by fine,” whereas no comma appears between “imprisonment in the county jail” “or by fine.” This language shows the Michigan Legislature intended to make offenses misdemeanors if the attempted offense was punishable by either “less than 5 years” or “imprisonment in the county jail or by fine.” The Michigan Legislature did not express an intent to make misdemeanors out of attempted offenses that were punishable by more than five years in prison simply because those offenses could also be punished by a fine. Defendant’s attempted offense (§ 333.7401, subd. (2)(d)(ii)) was not punishable by “imprisonment in the county jail or by fine,” it was punishable by seven years in prison or a fine, making subdivision 3 of the general intent statute inapplicable.
Moreover, reading the Michigan general attempt statute as a whole, it is clear the Michigan Legislature intended to address attempted offenses in order of severity. Subdivision 1 applies to offenses punishable with death; subdivision 2 applies to offenses punishable with life or five years or more in prison; and subdivision 3 applies to offenses punishable with less than five years in prison, or by a jail term or a fine. (§ 750.92.) As stated, defendant’s attempted offense was punishable by seven years in prison. (§ 333.7401, subd. (2)(d)(ii).) Thus, subdivision 2 of the general attempt statute applied and his Michigan conviction was a felony. Accordingly, the trial court’s instruction charging the jury that defendant’s prior conviction was a felony was harmless beyond a reasonable doubt.
II
Defendant Was Properly Convicted Of Being A
Felon In Possession Of Ammunition
Defendant also contends the sentence imposed for his conviction of being a felon in possession of ammunition was unauthorized because his prior conviction was for a misdemeanor and not a felony. As we explained ante, defendant’s Michigan conviction was for a felony. Thus, his claim to the contrary is without merit.
 
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Blease, Acting P. J.



/s/
Duarte, J.