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PEOPLE v. JESSE

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. William Fred JESSE, Defendant and Appellant.

Cr. 3519.

Decided: November 14, 1979

Alan M. Caplan, San Francisco, for defendant and appellant. Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Paul H. Dobson and Robert F. Tyler, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant was charged with two counts of assault with a deadly weapon, to wit, a revolver (Penal Code § 245, subd. (a)), and Penal Code section 12021 (ex-felon in possession of a concealable firearm). He was convicted of the Penal Code section 12021 charge. The jury was unable to agree on the assault charges and those charges were subsequently dismissed. He appeals from the judgment on the Penal Code section 12021 violation contending that reversal is required because of the due process clauses of the state and federal Constitutions, the full faith and credit clause of the federal Constitution and because of failure of the trial court to instruct on ignorance or mistake of fact. After a statement of the facts we consider each of these contentions.

The facts are these:

In 1963 appellant was convicted in the state of Washington of forgery, a felony, and served a prison term for that offense. In 1973 appellant received a Final Discharge Restoring Civil Rights from Washington State.

On September 4, 1976, John Gregory and Marvin Price were on a hunting trip near Groveland, California. While driving, they saw some items of interest on some property adjacent to the road. They entered the property owned by appellant and were rummaging around looking for antiques when appellant approached them carrying a .22-caliber revolver. A gun battle ensued and appellant was charged as heretofore stated.

THE DUE PROCESS CLAUSE

Appellant argues that he received a pardon from the state of Washington; that he relied upon that pardon; that the pardon allowed him to own, possess or control a handgun under the laws of Washington; that he was not warned in Washington that the rules may be different in other states and that all of this requires California to not prosecute him under Penal Code section 12021 in order that due process will not be denied him. We are not persuaded.

The Washington Final Discharge Restoring Civil Rights (herein called Restoration) is different than a California Pardon. Apparently, the Washington Restoration is automatic upon completion of parole and the requirements in Washington are much less stringent than those required for a pardon in California (see Penal Code § 4852.01-4852.21).

The Washington law (unlike California) does not preclude a felon from carrying a concealable firearm unless the crime committed was a “crime of violence” as defined in the statutes (see Revised Code of Washington, sections 9.41.010 and 9.41.040). Appellant's crime in Washington (forgery) was not a crime of violence and he never lost the right to carry a handgun in Washington.

Considering all of the circumstances (and even assuming that the Restoration be deemed a pardon) due process does not require that California recognize the Restoration. A pardon from a sister state does not remove the felony conviction from a defendant's records for purposes of determining whether a defendant has suffered a prior felony conviction (see People v. Biggs (1937) 9 Cal.2d 508, 510, 71 P.2d 214; People v. Dutton (1937) 9 Cal.2d 505, 71 P.2d 218; see also 56 Ops.Cal.Atty.Gen. 138-140 (1973)). Ordinarily a pardon does not blot out guilt.

Appellant's reliance upon U. S. v. Potts (9th Cir. 1975) 528 F.2d 883, is misplaced. That case overruled the holding in U. S. v. Hocter (9th Cir. 1973) 487 F.2d 270, which held that a person whose felony conviction was expunged after successfully completing probation had not suffered a prior felony conviction. In overruling Hocter (ibid.) the court noted that expungement of a conviction and restoration of civil rights in Washington under Revised Code of Washington, section 9.95.240 (which is similar to California Penal Code § 1203.4) had been interpreted by the appellate court of Washington and the Supreme Court of Washington as not obliterating the fact of the conviction. The court in Potts announced a new rule of law and deemed that due process fairness only allowed prospective application of that new law. No such new rule of law applies here. As the case law cited above indicates, California has since 1937 refused to recognize sister state pardons in the manner desired by appellant.

Reliance on People v. Cruz (1972) 25 Cal.App.3d Supp. 1, 13, 101 Cal.Rptr. 711, is also misplaced. While the proposition expressed in Cruz at page 13, 101 Cal.Rptr. at page 718 that no one “… be held criminally responsible for conduct which he could not reasonably understand to be proscribed …” is a valid principle of law, a reasonable person would have no difficulty in understanding what conduct Penal Code section 12021 sought to reach.

Due process does not require a reversal.

THE FULL FAITH AND CREDIT CLAUSE

This contention is also without merit. The full faith and credit clause is not violated when a state refuses to recognize a pardon granted by a sister state in the context of a subsequent prosecution (People v. Dutton, supra, 9 Cal.2d 505, 506, 71 P.2d 218; People v. Norton (1978) 80 Cal.App.3d Supp. 14, 22-23, 146 Cal.Rptr. 343; see also, Carlesi v. People of the State of New York (1914) 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843; Murray v. State of Louisiana (5th Cir. 1965) 347 F.2d 825, 827). California has in fact given full faith and credit to the Washington law—appellant was regarded as a felon in both California and Washington (see State v. Cullen (1942) 14 Wash.2d 105, 127 P.2d 257, 259; State v. Carlyle (1978) 19 Wash.App. 450, 576 P.2d 408, 413-414).

Nor is this appellant factually correct in arguing that the Restoration in Washington expressly restored appellant's right to possess a concealable firearm. As previously indicated, the appellant never lost that right under Washington law in the first place.

CALJIC 4.35

The contention that reversal is required because the court failed to instruct sua sponte on ignorance or mistake of fact (such as set forth in CALJIC 4.35) fails to pass muster.

Unlike the defendant in People v. Bray (1975) 52 Cal.App.3d 494, 124 Cal.Rptr. 913, relied upon by appellant, appellant was not ignorant or mistaken as to whether he had been convicted of a felony in Washington. Appellant knew that he was convicted of a felony in Washington and admitted the conviction. As Bray pointed out at page 499, 124 Cal.Rptr. at page 917:

“This decision should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was a felon. Here Bray had been convicted in Kansas of what for California is an unusual crime, “accessory after the fact” and even the prosecutor claimed difficulty in knowing whether it was a felony. In addition, Bray on more than one occasion had been led to believe by state regulatory agencies that he was not a felon: he was allowed to vote, he was registered in an occupation allowing him to carry a gun, and he was allowed to buy and register the gun. Throughout the trial, Bray laid the proper foundation for the instructions and he requested them. It is only in very unusual circumstances such as these that the giving of these instructions is necessary.”

The instant case is clearly distinguishable from Bray. No true issue of knowledge was presented here. (See People v. Howard (1976) 63 Cal.App.3d 249, 257, 133 Cal.Rptr. 689.)

Appellant was mistaken as to the law in California on Penal Code section 12021 and may not have known that he would be held to be an ex-felon notwithstanding the Restoration. That, however, is not a defense of mistake of fact. There was no requirement of giving any instruction sua sponte as contended by appellant. Nor would it have been error to refuse any offered instruction. We reject appellant's argument set forth in a passing remark in his closing brief that trial counsel was incompetent in not requesting an instruction.

The judgment is affirmed.

HOPPER, Associate Justice.

GEO. A. BROWN, P. J., and FRANSON, J., concur.

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