PEOPLE v. COTA (1979)

 We hold that a defendant charged with possession of a concealable firearm by a felon may not raise as a defense the invalidity of the underlying prior felony conviction.

Appellant was charged with violation of Penal Code section 12021, subdivision (a), which provides in relevant part:  “Any person who has been convicted of a felony under the laws of  ․ ․ ․  any other state  ․ ․ ․  who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense,  ․ ․ ․”  The case was submitted to the court on the transcript of the preliminary examination which contained ample evidence of the possession element of the offense.   The defense was directed entirely to the issue of appellant's status as a felon.

The prosecution introduced three documents on this issue:  (1) Indictment No. A22353, dated November 21, 1972, Pima County, Arizona, whereby appellant and others were charged with four counts of grand theft and aggravated assault;  (2) A “Minute Entry” of April 13, 1973, indicating that appellant entered a plea of guilty to the grand theft charge;  and (3) An Abstract of Judgment showing that on May 17, 1973, the court pronounced judgment and granted appellant five years probation.

Appellant presented no evidence at trial, but argued that the People had not met their burden of proving his felon status.   In particular he argued that the documentary evidence showed on its face that the prior was constitutionally invalid because it did not clearly indicate counsel was present at the time he entered his guilty plea and did not show that the Boykin-Tahl requirements were satisfied.  (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)   No reporter's notes of the relevant proceedings were available, but the minute entry recites:  “Paul Wolf, Defendants' Attorneys [sic ],” and contains the statement, “The Court questions the Deft. as to his plea of GUILTY.   The Court Finds that the Deft. knowlingly [sic ] and voluntarily enters a plea of GUILTY.”

The district attorney argued that despite any asserted improprieties in the taking of the plea, the validity of the prior conviction was not open to question in the present action, because the crime of “felon with a gun” requires merely that the defendant have the status of having been convicted of a felony, not that the felony survive subsequent collateral attack.   After argument the trial court found appellant guilty;  and it denied motion for new trial following similar argument.   We affirm.

The question raised by appellant appears to be one of first impression.   The cases upon which the People rely for the proposition that appellant cannot attack the validity of his prior are not in point.   In People v. Loomis (1965) 231 Cal.App.2d 594, 42 Cal.Rptr. 124, the prior was concededly valid but was set aside under a youthful offender statute after commission of the violation of section 12021.  People v. Banks (1959) 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102 also involved a prior the validity of which was not questioned, although before commission of the 12021 violation the defendant had successfully completed probation and could have had the prior dismissed had he made the appropriate motion.   Cases which have upheld escape convictions against a defendant who is incarcerated under a constitutionally invalid prior are obviously distinguishable on their facts (see People v. Hinze (1950) 97 Cal.App.2d 1, 217 P.2d 35;  People v. Ganger (1950) 97 Cal.App.2d 11, 217 P.2d 41), as is our decision in People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 136 Cal.Rptr. 229, holding that where defendant is charged with assault by a life prisoner he may not be heard to argue that his prior is invalid because of constitutionally inadequate trial counsel.  (See also People v. Dubose (1971) 17 Cal.App.3d 43, 94 Cal.Rptr. 376 [upholding a parole search although it was subsequently shown that defendant should have been discharged from parole prior to the search].)

Two reported decisions appear to support appellant's position but did not squarely address the issue.   In People v. McGinnis (1967) 249 Cal.App.2d 613, 57 Cal.Rptr. 661, counsel argued that defendant could not properly be convicted of a 12021 violation because the record regarding his Oklahoma prior was silent as to whether he had received adequate assistance of counsel.   The Court of Appeal held that “the raising of this question does not require a reversal” (id., at p. 617, 57 Cal.Rptr. at p. 663), because there was a stipulation at trial to the regularity and soundness of the Oklahoma conviction and because the face of the record showed that defendant had been represented by counsel throughout the proceedings in that state.

The court stated, “In cases involving a foreign conviction, which is of the essence of the charge of crime in this state, proof that does not show that the defendant was there represented by counsel, or, that he waived the right thereto, is not sufficient.”  (McGinnis, supra, 249 Cal.App.2d at p. 618, 57 Cal.Rptr. at p. 664.)   The statement is clearly dictum since it was unnecessary to the holding and because the question whether appellant could raise the point was never addressed.   It is axiomatic that an opinion is not authority for a proposition not considered therein.  (E. g., Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.)   Furthermore the cases cited in McGinnis, supra, for the quoted proposition were not in point.   They stand for the rule that a prior felony conviction cannot support an adjudication of habitual criminality under Penal Code section 644 unless defendant was represented by, or validly waived, counsel at the prior proceeding.  (People v. Ebner (1966) 64 Cal.2d 297, 305, 49 Cal.Rptr. 690, 411 P.2d 578;  In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913;  In re Tucker (1966) 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921.)  In re Luce (1966) 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918 permitted a defendant to raise the question of the constitutional validity of a prior misdemeanor conviction used to elevate to felony status a misdemeanor indecent exposure;  and People v. Shanklin (1966) 243 Cal.App.2d 94, 101–102, 52 Cal.Rptr. 28, is to the same effect where the charge was petty theft with a prior.   The same rule applies where the prior is used to increase severity of punishment.  (People v. Espinoza (1966) 241 Cal.App.2d 718, 720, 50 Cal.Rptr. 879 [robbery with two priors].)

 The rule to be gleaned from these cases is that “to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations.”  (People v. Coffey (1967) 67 Cal.2d 204, 214–215, 60 Cal.Rptr. 457, 464, 430 P.2d 15, 22, emphasis added.)   The context, including citations, in which this rule is found makes clear that “penal status” refers to habitual criminal status under Penal Code section 644, and that “severity of sanction” refers to cases such as those summarized in the above paragraph and those dealing with limitations on consideration for term-fixing or parole as discussed in In re Streeter (1967) 66 Cal.2d 47, 50, 56 Cal.Rptr. 824, 423 P.2d 976.   The use of a prior conviction as an element of violation of section 12021 falls into neither of these categories.

People v. McGinnis, supra, has been cited once, in People v. Norton (1978) 80 Cal.App.3d Supp. 14, 24–25, 146 Cal.Rptr. 343, for the proposition here in question.   The decision contains no analysis of the issue and relies solely upon the McGinnis dictum and on People v. Coffey, which, as we have explained, does not support the McGinnis view.   We decline to follow the McGinnis dictum, and we disapprove the holding of the appellate department in Norton.

We note that the federal decisions are in conflict.   Recent decisions of the Ninth Circuit Court of Appeals consistently permit attack upon the validity of the prior which constitutes an element of the federal offense of possession of a firearm by a felon.  (E. g., United States v. Thoresen (9th Cir. 1970) 428 F.2d 654;  see the leading decision, McHenry v. People of State of California (9th Cir. 1971) 447 F.2d 470;  cf. United States v. Liles (9th Cir. 1970) 432 F.2d 18 [not permitting attack on the prior where it had been reversed not on constitutional grounds but for insufficiency of evidence].   See also United States v. Pricepaul (9th Cir. 1976) 540 F.2d 417 [permitting attack on Boykin-Tahl grounds].   Cf. United States v. Bergeman (9th Cir. 1979) 592 F.2d 533 [subsequent expunction of prior not a valid defense].)

However, the Fourth Circuit follows what we consider to be the better rule and recently found no error in United States v. Lewis (4th Cir. 1979) 591 F.2d 978, where the trial court refused defendant's offer of proof that his prior was suffered after he had been denied assistance of counsel.   The court cited other federal decisions in agreement with its view.  (E. g., United States v. Graves (3d Cir. 1977) 554 F.2d 65;  United States v. Maggard (6th Cir. 1978) 573 F.2d 926.)

 We find nothing on the face of the statute in question or in its history which would indicate that the Legislature intended to exempt from section 12021 one whose status as a convicted felon changed after the date of possession, regardless of how that change of status occurred.  “The Dangerous Weapons Control Act [of which section 12021 is part] is designed to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence.”  (People v. Scott (1944) 24 Cal.2d 774, 782, 151 P.2d 517, 521.)   The Legislature had the constitutional power, in the promotion of this goal, to prohibit any person subject to an outstanding facially valid felony conviction, which, though arguably constitutionally invalid, had not been earlier invalidated, from possessing a concealable firearm;  and we hold that it did so.  (See United States v. Lewis, supra, 591 F.2d at p. 981.)

In support of 1965 legislation which increased the maximum penalty for violation of section 12021 and which prohibited certain felons from possessing any firearm, whether or not concealable, the Assembly Interim Committee on Criminal Procedure stated in part that “conviction of a felony in which a firearm was used is sufficient indication that the convicted felon is not a desirable person to own or possess or have in his custody a firearm.”   (22 Assem. Interim Com.Rep. (1963–1965) No. 6, Crim. Procedure, Regulation and Control of Firearms (Jan. 1965) p. 32, emphasis added.)   We infer that it is the fact of conviction which the Legislature intends to activate the prohibition of section 12021, not the fact of validity of the conviction.

This view finds further support when the following circumstances are examined.   The Legislature was aware of the possibility that a convicted felon might be relieved of the restrictions found in section 12021.   In summarizing firearm control statutes in California, the committee noted that a full and unconditional pardon based on a certificate of rehabilitation would restore the felon's rights with respect to firearms (with exception for those whose felony involved use of a dangerous weapon), but that expungement of a record for a defendant successfully completing probation would not.  (See 22 Assem. Interim Com.Rep., op. cit. supra, at p. 23, fn.)   We infer that had the Legislature intended to relieve convicted felons in other circumstances, such as those here under consideration, it would have done so.

“The clear intent of the Legislature in adopting the weapons control act was to limit as far as possible the use of instruments commonly associated with criminal activity.”  (People v. Washington (1965) 237 Cal.App.2d 59, 66, 46 Cal.Rptr. 545, 550.)   We perceive a broad legislative purpose to prevent those with criminal backgrounds, including those whose prior convictions may subsequently prove to be constitutionally infirm, from possessing firearms.   It is the role of the Legislature, not this court, to amend the statute if a different result is deemed preferable.

The judgment is affirmed.

MILLER, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.