P. v. Brown

Filed 4/6/07 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of the County of Riverside. Patrick F. Magers, Judge. Affirmed as modified.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Christopher Brown was convicted of carrying a loaded and unregistered firearm, in violation of Penal Code section 12031, subdivision (a)(2)(F).^[1] On appeal, he contends that the conviction was improper because he was a Nevada resident who was not required to register the firearm.

The People agree with his contention, and both parties request this court to reduce the conviction to the alleged lesser included offense of carrying a loaded firearm in a public place, a misdemeanor violation of section 12031, subdivision (a)(2)(G).

We disagree with the reasoning of the parties, but agree that the offense is a misdemeanor. We order the judgment modified to clarify the nature of the offense.

I. FACTS

Carl Hunter testified that, on September 3, 2005, he was living in Riverside with Alex Brown and others.^[2] On that day, defendant, Alexs brother, arrived from Nevada to visit them. The next morning, Hunter was leaving the apartment between 7:00 and 8:00 a.m. when defendant accosted him and hit him in the face. According to Hunter, defendant brandished a gun at him and threatened him. Hunter called the police, but defendant was gone by the time the police arrived.

Defendant returned with his brother later in the day and Hunter called the police again. Officers arrived, arrested defendant and Alex Brown, and searched their car. Defendants gun was found in a backpack in the trunk, together with an identification card with his name on it.

II. PROCEDURAL HISTORY

Four charges were filed against defendant. The first count, an alleged violation of section 12021, subdivision (c)(1), was dismissed by the court. The second and fourth counts charged violations of sections 245, subdivision (b) (assault with a firearm), and 422 (making criminal threats), respectively. The jury returned a not guilty verdict as to those charges.

Count 3 charged defendant with a felony violation of section 12031, subdivision (a)(2)(F). The jury convicted him of the offense as charged. Defendant was sentenced to probation for three years, with credit for time served of 258 days.

III. SECTION 12031

Section 12031, subdivision (a)(1) provides: A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. Under the facts here, defendant clearly violated this section by carrying a loaded gun in a car on a public street.

Section 12031, subdivision (a)(2) provides the punishment for the violation in various stated circumstances. Circumstances alleged under subdivision (a)(2) lead to the crime being punished as a felony (subdivision (a)(2)(A), (B), (C), and (D)), a wobbler (subdivision (a)(2)(E) and (F)), or a misdemeanor (subdivision (a)(2)(G)).

Defendant was convicted of violating section 12031, subdivision (a)(2)(F): (2) Carrying a loaded firearm in violation of this section is punishable, as follows: [] . . . [] (F) Where the person is not listed with the Department of Justice pursuant to Section 11106, as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment. An officer testified that a records check did not show that defendant was the registered owner of the handgun. This testimony supported the applicability of the sentencing factor described in subdivision (a)(2)(F).

Since the specified subdivision provides for possible punishment in either state prison or county jail, defendant could have been given either a felony or a misdemeanor sentence. Crimes with such alternative sentencing possibilities are generally known as wobblers. ( 17; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.)

Section 17, subdivision (b)(1) states: (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [] (1) After a judgment imposing a punishment other than imprisonment in the state prison.

Since the sentence imposed here was probation with credit for time served, the offense became a misdemeanor for all purposes.^[3][4]

IV. DEFENDANTS ARGUMENTS

Defendant disregards the effect of his probationary sentence under section 17 and assumes that his conviction remained a felony conviction. He contends that, to establish a felony violation of section 12031, subdivision (a)(2)(F), the prosecution must show that the defendant had a legal duty to register his firearm with the Department of Justice (the Department), and that he failed to do so. From this premise, he argues that [a]s an out-of-state resident from Nevada, visiting California for the weekend, [he] had no legal duty to register his firearm with the Department. Finding insufficient evidence to establish a legal duty to register his firearm, he argues that the felony conviction must be reduced to a misdemeanor conviction of an alleged lesser included offense of carrying a loaded firearm in a public place. ( 12031, subd. (a)(1).)

Defendants legal duty argument is premised on the initial clause of section 12031, subdivision (a)(2)(F). That clause refers to persons who are not registered with the Department pursuant to section 11106. Section 11106 requires the Attorney General to maintain a database of handgun sales transactions reported by gun dealers under various statutes. There is no requirement under these statutes for an individual gun owner to register his or her handgun with the Department. More particularly, there is no general requirement that a person entering California register his or her handgun upon arrival in California. In this regard, section 12072 only requires certain persons moving to California to register their handguns within 60 days. ( 12072, subd. (f)(2)(A).)^[5]

Accordingly, the People agree with defendant: As a resident of another state, visiting California and bringing a firearm into the state, there is no legal requirement for [defendant] to register the firearm in some manner.^[6] But the People fail to acknowledge that there is also no requirement for a handgun purchaser to register his new weapon. The burden is on the firearms dealer to report the transaction to the Department.

In any event, the legal duty argument devolves into a conclusion that the evidence was insufficient to support the conviction because the existence of a legal duty is an element of the crime described in section 12031, subdivision (a)(2)(F).

This issue was discussed during a conference on jury instructions. The jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 2530, which states that the prosecution must prove that: (1) defendant carried a loaded firearm in a vehicle; (2) defendant knew he was carrying the firearm; (3) the vehicle was on a public street; and (4) defendant was not listed with the Department as the owner of the firearm. As noted above, the first three elements establish the offense stated in section 12031, subdivision (a). The fourth element is a circumstance establishing a sentencing factor under section 12031, subdivision (b). It is not an element of the offense. (People v. Hall (1998) 67 Cal.App.4th 128, 135.)

Although the trial court recognized that the charged offense was a wobbler, it misspoke when it characterized registration as the element which made the crime a felony and when it treated lack of that element as establishing a lesser included misdemeanor offense. A true finding on the registration element actually makes the crime a wobbler, and the final classification of the crime depends upon sentencing. And, as discussed above, the misdemeanor sentence makes the crime a misdemeanor under section 17, subdivision (b)(1), for all purposes.

The defendant relies on the fact that the trial court failed to instruct the jury that it had to find that he had a legal duty to register the handgun with the Department. Since he contends that the legal duty is an element of the offense, he concludes that the instructions were insufficient, and that the instructional error was prejudicial.

We find no instructional error in this regard because we have found that the purported legal duty is not an element of the offense. Under section 12031, subdivision (a)(2)(F), the prosecution need only prove, as a sentencing factor, that the defendant was not the registered owner of the handgun. The instructions correctly advised the jury of this fact, and we find no instructional error.^[7]

Defendant next contends that the trial court abused its discretion by admitting a computer printout to prove that the handgun was not registered with the Department. If this evidence was not admitted, the prosecution would have been unable to prove that the weapon was unregistered, and the offense would be a misdemeanor under section 12031, subdivision (a)(1) and (a)(2)(G).

The People argue that this argument is moot because the People agree that the felony conviction should be reduced to a misdemeanor.

We agree that the argument is moot because we find that the probationary sentence had the legal effect of making the crime a misdemeanor under section 17, subdivision (b)(1).

Defendant further argues that the computer printout should have been redacted to eliminate a statement that the gun had been reported stolen in Las Vegas. Although there are substantial issues raised by the use of a California computer printout to report an alleged crime under Nevada law, we need not confront those issues here. Since the only effect of a successful argument on this point would be to reduce the offense to a misdemeanor, we agree with the People that this issue is also moot.

V. DISPOSITION

The judgment is modified to make it clear that, by operation of section 17, subdivision (b), defendant Christopher Brown was convicted of a misdemeanor violation of section 12031, subdivision (a)(2)(F). As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Alex Brown possessed a legally registered handgun which was found with Christopher Browns gun. Alex Brown was also a defendant, but the facts relating to his involvement and his gun are irrelevant to the issues on this appeal.

^[3] The determination whether a crime is a felony or misdemeanor can also be made at the preliminary hearing. In this case, a section 17, subdivision (b) motion was made at sentencing and denied by the trial court due to defendants prior record. However, the trial court should not have considered the motion at that late date. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 973, fn. 2; People v. Silva (1995) 36 Cal.App.4th 231.)

^[4] Since defendant was actually sentenced, section 17, subdivision (b)(3), which refers to a grant of probation without imposition of sentence, is inapplicable.

^[5] Such a person, known as a personal handgun importer, is further defined in section 12001, subdivision (n). Defendant was not required to register his handgun with the Department under these definitions, or under section 12072.

^[6] We note that there is no evidence in the record to support defendants contention that he was only visiting for the weekend, and no evidence to support the Peoples contention that defendant actually brought the gun into the state. There was testimony that defendant had been living in Las Vegas for four months but, since defendant apparently had a California identification card, there was an undeveloped argument as to whether defendant was actually a Nevada resident or not.

^[7]We note, however, that both parties requested the trial court to instruct with CALCRIM No. 2545. The trial court failed to do so. But, as stated in the Bench Note for CALCRIM No. 2545, the giving of the instruction was required. The Bench Note also states that the jury should have been given a verdict form which allowed the jury to indicate whether the alleged sentencing factor was proven.