PEOPLE v. HOWIE (1982)

INTRODUCTION

Defendant Dennis Ray Howie appeals from a judgment of conviction entered after a jury trial.

During the course of the trial, defense counsel brought to the court's attention an order of the superior court of San Mateo County in an unrelated criminal proceeding striking defendant's prior conviction as unconstitutional.   Based on extrinsic evidence proffered by the People, the trial court held that sound policy reasons existed to permit relitigation of the constitutionality of defendant's prior conviction in that it appeared a determination had not been made on the full and complete record of the circumstances surrounding the entry of defendant's guilty plea.   In addition, the trial court found insufficient evidence to establish that the issue of constitutionality had been determined on the merits.   Accordingly, the trial court denied collateral estoppel effect to the order of the superior court of San Mateo County and permitted relitigation of the constitutional validity of defendant's prior conviction.

The jury found defendant not guilty of attempted robbery (Pen.Code, §§ 664, 211) and assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)), but guilty of two counts of being a convicted felon in possession of a firearm (Pen.Code, § 12021), one of which was transactionally related to the attempted robbery and assault charges.   Thereafter, defendant was sentenced to state prison for the term prescribed by law.

CONTENTIONS

I

Defendant contends that the trial court erred in permitting relitigation of the constitutional validity of his prior conviction.

II

Defendant further contends that the trial court erred in excluding evidence of his belief that he was no longer a convicted felon and in refusing to instruct the jury on mistake of fact as a defense to the charges that defendant was a convicted felon in possession of a firearm.

III

Finally, defendant asserts that the trial court committed prejudicial sentencing error by overlooking factors in mitigation and making a dual use of factors in aggravation.

DISCUSSION

I

 For the reasons set forth below, we agree with defendant's contention that the trial court erred in permitting relitigation of the constitutional validity of his prior conviction.   The doctrine of collateral estoppel prevents relitigation of issues actually and necessarily decided in a prior action, civil or criminal, which resulted in a determination on the merits if the party against whom the bar is asserted was a party or in privity with a party to the prior proceeding.  (People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 527 P.2d 622;  Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439.)   The final determination on the merits need not be a judgment;  a decision on a motion will be afforded res judicata effect when the order determines a substantial matter of right on issues of law and/or fact necessarily decided as the basis for the order entered.  (Sunkler v. McKenzie (1900) 127 Cal. 554, 59 P. 982;  Anderson v. Great Republic L. Ins. Co. (1940) 41 Cal.App.2d 181, 196, 106 P.2d 75.)

Clearly, the San Mateo County Superior Court order striking defendant's prior conviction as unconstitutional determined a matter of substantial right on issues of law and fact necessarily decided by the court;  in addition, the People were a party to that proceeding.   The People argue, however, that the record does not affirmatively disclose that the issue was fully and fairly litigated or determined on the merits.   Unfortunately, the People misconceive the import of these terms.

 To ascertain that an issue was determined on the merits, it is unnecessary that we be apprised of the specific reason for the conclusion reached by the court;  indeed, the reason is irrelevant, for even an erroneous final judgment or order will be given res judicata effect.  (See In re Rogers (1980) 28 Cal.3d 429, 437, fn. 6, 169 Cal.Rptr. 222, 619 P.2d 415;  Weil v. Barthel (1955) 45 Cal.2d 835, 291 P.2d 30.)   The determination of an issue on a basis other than jurisdictional or other purely procedural grounds is one on the merits (Shore v. Shore (1955) 43 Cal.2d 677, 277 P.2d 4);  a fortiori, a determination that defendant's prior conviction is unconstitutional necessarily reached the merits of the issue presented.

 As to the concept of full and fair litigation, the proper referent is the fairness of the opportunity to litigate which is afforded, rather than the completeness of the evidence actually presented.   A party is denied a fair adversary hearing when fraud in the sense of a knowing misrepresentation or a conniving against the opposing party prevents the presentation of a claim or defense.  (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470–473, 82 Cal.Rptr. 489, 462 P.2d 17.)   But neither a failure to adequately investigate the facts nor to assemble all one's evidence will defeat the bar of a collateral estoppel.  (Id., at p. 473, 82 Cal.Rptr. 489, 462 P.2d 17;  see also Teitelbaum Furs, Inc. v. Dominion Ins. Co., supra, 58 Cal.2d 601, 607, 25 Cal.Rptr. 559, 375 P.2d 439.)

 The People have not asserted and the record discloses nothing to suggest that the proceedings leading to defendant's prior conviction were knowingly misrepresented to the San Mateo County Superior Court or that the People were deprived of an opportunity to ascertain the facts.   It simply appears that the transcript presented to that court contains wholly unexplained gaps indicated by asterisks.   The potential significance of the asterisks must have been equally as apparent to the San Mateo County representative of the People as it was to their representative in the instant proceeding, for the extant transcript excerpts do not recite the taking of defendant's plea.   It follows that the opportunity to investigate further was equally available and either a complete transcript could have been obtained, as it was herein, or the denial of an opportunity to do so would have provided a ground upon which to challenge the court's ruling on appeal.  (Pen.Code, § 1238, subd. (a)(1).)   The failure to investigate and undertake the attempt to secure a complete transcript, or to challenge the court's ruling on appeal, should not now privilege the People to relitigate the issue at defendant's expense.   Accordingly, we perceive no barrier to the application of collateral estoppel in the nature of the hearing afforded.

The People also rely on In re Rogers, supra, 28 Cal.3d 429, 169 Cal.Rptr. 222, 619 P.2d 415 for the proposition that the res judicata or collateral estoppel effect of a ruling on a motion to strike is limited to the same proceeding or related administrative proceedings.   On the facts before the court, Rogers did limit its holding to that effect;  however, the issue of the maximum collateral estoppel effect of such a ruling was not before the court and was not decided.   Indeed, language stating that the ruling at issue in Rogers was conclusive “at least with respect to the same criminal proceeding or related administrative proceedings” (Id., at p. 436, 169 Cal.Rptr. 222, 619 P.2d 415;  emphasis added) evinces an intention to reserve the question for future decision.

 In determining whether to apply the doctrine of collateral estoppel, we must give due weight to the public interest in promoting judicial economy by minimizing repetitive litigation, protecting against vexatious litigation, and preventing inconsistent judgments which undermine the integrity of the judicial system.  (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875, 151 Cal.Rptr. 285, 587 P.2d 1098;  People v. Taylor, supra, 12 Cal.3d 686, 695, 117 Cal.Rptr. 70, 527 P.2d 622.)   These vital public interests surpass any individual judge's ad hoc determination of the equities in a particular case.   (Federated Department Stores, Inc. v. Moitie (1981) 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103.)   In other words, collateral estoppel, like its parent res judicata, is “ ‘a rule of fundamental and substantial justice, ․ which should be cordially regarded and enforced by the courts ․’ ”  (Ibid.)   With these principles in mind, we note that “[a] determination as to the validity of a former adjudication is res judicata in a subsequent proceeding attacking it.”  (People v. Silva (1981) 114 Cal.App.3d 538, 551, 170 Cal.Rptr. 713 and cases cited therein.)   Hence, a final ruling on a motion to strike adverse to a criminal defendant precludes relitigation of the issue in future proceedings.   Considerations of fundamental and substantial justice require that the People be subject to the same bar.

 The question remains whether the collateral estoppel effect of the San Mateo County Superior Court order striking defendant's prior conviction as unconstitutional provides a defense to the charge of being a convicted felon in possession of a concealable firearm (Pen.Code, § 12021).   At least one California case, People v. McGinnis (1967) 249 Cal.App.2d 613, 57 Cal.Rptr. 661, has expressly assumed that a collateral attack on a constitutionally invalid prior felony conviction is a defense to a charged violation of section 12021, and others have done so impliedly.  (See, e.g., People v. Norton (1978) 80 Cal.App.3d Supp. 14, 146 Cal.Rptr. 343.)   However, none of these cases undertook the construction of section 12021, so we approach the issue as one of first impression.

In Lewis v. United States (1980) 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198, the United States Supreme Court held that a collateral attack on the constitutionality of a prior felony conviction does not provide a defense to the comparable federal statute, 18 United States Code section 1202, subdivision (a).   It is unequivocally clear that California Penal Code section 12021 is not based on the federal statute, but Lewis nonetheless provides guidance in our construction of section 12021.

In construing the federal statute, section 1202, Lewis considered the following factors:  (1) the sweeping language of the statute, proscribing the possession of any firearm by any person convicted of a felony;  (2) a legislative history indicating the statute was a response to increased violent crime;  (3) the previous judicial construction of the statute as broadly prohibitive;  (4) an express provision exempting certain persons from the statute's operation;  (5) other provisions in Title VII which provide remedies for removal of the statutory disability by obtaining a qualifying pardon (18 U.S.C.App., § 1203, subd. (2)) or the consent of the Secretary (18 U.S.C., § 925, subd. (c));  (6) other provisions in Title VII which proscribe the receipt of firearms by persons under felony indictment (18 U.S.C., § 922, subds. (g) and (h));  and (7) contrary provisions in other statutes which recognize a challenge to the constitutionality of a prior conviction as a defense (18 U.S.C., § 3575, subd. (e) and 21 U.S.C., § 851, subd. (c)(2)).   Certainly, the enumerated factors reasonably support the construction which Lewis gave to section 1202;  i.e., that Congress intended the mere fact of felony conviction, without reference to the quality of the conviction, to be the prohibiting factor.  (455 U.S. 55, 66–67, 100 S.Ct. 915, 921, 63 L.Ed.2d 198.)   This construction is consistent with previous judicial constructions holding that the statute imposes more or less strict liability to which neither intent nor knowledge is relevant;  in this vein, federal courts refuse to recognize self-defense or mistake of fact as defenses to violation of the statute.  (See, e.g., United States v. Kelly (8th Cir.1975) 519 F.2d 794;  United States v. Matthews (9th Cir.1975) 518 F.2d 1296;  United States v. Snell (D.C.Md.1973) 353 F.Supp. 280.)

When the determinative factors considered in Lewis are weighed against Penal Code section 12021, the differences in the backgrounds of the two statutes are striking.   The legislative history of section 12021 provides little illumination;  however, the proscription at issue in the instant proceeding originally was enacted in 1923 and has remained essentially unchanged since then (compare Stats.1923, ch. 339, § 2, p. 696 with Stats.1953, ch. 36, § 1, p. 654)—clearly, the statute was not a response to recent increases in violent crime.   The construed purpose of the federal statute, “to keep guns out of the hands of those who have demonstrated that ‘they may not be trusted to possess a firearm without becoming a threat to society’ ” (Scarborough v. United States (1977) 431 U.S. 563, 572, 97 S.Ct. 1963, 1967, 52 L.Ed.2d 582), is somewhat similar to the construed purpose of section 12021, “ ‘to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence’ ” (People v. Evans (1974) 40 Cal.App.3d 582, 586, 115 Cal.Rptr. 304);  but the federal statute is far more broadly prohibitive than section 12021, applying to all firearms rather than only those capable of concealment.

Further, in stark contrast to the federal statutory scheme, the 1953 enactment of the Dangerous Weapons Control Law, which codified the 1923 law as section 12021 (Stats.1953, ch. 36, § 1, p. 654), contains no exceptions to the general proscription imposed on convicted felons;  no remedies for removal of the disability imposed by section 12021;  and no companion sections imposing a similar disability on persons under felony indictment.   Moreover, the Penal Code contains no provisions expressly recognizing the constitutional invalidity of a prior conviction as a defense in other circumstances.   Hence, we may not infer from the presence of exceptions, specific and limited remedies, or the imposition of similar proscriptions against persons under indictment that the Legislature intended the mere fact of felony conviction rather than the quality thereof to be the determinant of liability;  nor may we infer from prior instances that the Legislature would have codified the constitutional invalidity of a prior conviction as a defense to section 12021 had such been its intent.

As enunciated in Bowland v. Municipal Court (1976) 18 Cal.3d 479, 488, 134 Cal.Rptr. 630, 556 P.2d 1081 and reiterated in People v. King (1978) 22 Cal.3d 12, 23, 148 Cal.Rptr. 409, 582 P.2d 1000:  “Where the [penal] statute is susceptible of two reasonable constructions ․ defendant is ordinarily entitled to that construction most favorable to him.”   In the absence of those indicators surrounding the federal statute (Lewis v. United States, supra, 445 U.S. 55, 60–68, 100 S.Ct. 915, 918–22, 63 L.Ed.2d 198), and in light of the construed purpose of section 12021 noted ante, we may reasonably infer that the Legislature utilized the classification of convicted felon as a hallmark of criminal guilt which identified those more likely to commit crimes of violence given free access to concealable firearms.   This construction is consonant with the view that section 12021 is not to be construed as imposing strict liability;  i.e., that intent and knowledge do have some relevance to violation thereof.  (People v. Bray (1975) 52 Cal.App.3d 494, 497, 124 Cal.Rptr. 913;  see also People v. King, supra, 22 Cal.3d 12, 148 Cal.Rptr. 409, 582 P.2d 1000.)

Lewis v. United States, supra, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 rejected a collateral attack on the constitutionality of a prior felony conviction as a defense to the federal statute because the court concluded that Congress was unconcerned with the reliability or quality of the conviction, and it is the unreliability of an unconstitutional conviction which forecloses its use in other circumstances.  (Id., at p. 67, 100 S.Ct. at 921.)   In view of our construction of legislative intent, a prosecution for the violation of section 12021 falls within the holding of People v. Coffey (1967) 67 Cal.2d 204, 219, 60 Cal.Rptr. 457, 430 P.2d 15 forbidding the use of unconstitutionally obtained prior convictions for any purpose in a subsequent criminal proceeding:  “We think it equally clear that the utilization of such a conviction, at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process clause of the Fourteenth Amendment.”   Unreliability is the foundation of the Coffey rule, for as noted in In re Dabney (1969) 71 Cal.2d 1, 9, 76 Cal.Rptr. 636, 452 P.2d 924:  “To the extent that such [a constitutionally] infected prior conviction contributes to a later conviction, the danger threatens that the second proceeding as well as the first, on which it relied, will produce the conviction of an innocent man.”   Although Coffey and Dabney both dealt with uncounseled prosecutions, we are convinced the danger is as great in the case of an improperly taken guilty plea.   Indeed, general principles of res judicata recognize the limited reliability of any guilty plea, denying res judicata or collateral estoppel effect to a judgment entered thereon.  (Teitelbaum Furs, Inc. v. Dominion Ins. Co., supra, 58 Cal.2d 601, 604–606, 25 Cal.Rptr. 559, 375 P.2d 439;  O'Connor v. O'Leary (1967) 247 Cal.App.2d 646, 650, 56 Cal.Rptr. 1.)

In summary, we hold that a successful collateral attack on the constitutionality of a prior felony conviction does state a complete defense to a charged violation of section 12021 and that a prior ruling of unconstitutionality collaterally estops the People from relitigating the issue of constitutionality in a subsequent prosecution for the violation of section 12021.   Accordingly, the trial court erred in permitting relitigation of the issue in the instant case;  defendant is entitled to assert the ruling of the San Mateo County Superior Court as a defense to the charge.   In view of the conclusion we reach, we find it unnecessary to address defendant's other contentions.

The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

SPENCER, Presiding Justice.

DALSIMER, J. and BYRNE, J.*, concur.Hearing denied, RICHARDSON, and KAUS, JJ., dissenting.