The opinion
TIMLIN, J., Concurring and Dissenting.
I concur in the majority’s analysis and rejection of defendant’s due process and equal protection of the law challenges to the application of Penal Code section 12021, subdivision (a) in this case. 1 However, I respectfully dissent from the majority’s discussion and conclusion concerning the effect of the constitutional prohibition against ex post facto laws on the application of section 12021(a) in this case. I would reverse the judgment entered below because, in my view, the amendment to section 12021(a) which became effective on January 1, 1990—that is, the expanded scope of the section which now encompasses the possession of nonconcealable firearms by convicted felons—can be applied validly only to those who have suffered a prior felony conviction for an offense which was committed on or after January 1, 1990. As to those whose only prior felony convictions relate to criminal offenses committed prior to January 1, 1990, such as defendant herein, application of the 1990 amendment to section 12021(a) violates the constitutional proscription against ex post facto laws and is therefore void to the extent of such application.
*1292 Facts
The majority has simply and fairly stated the facts underlying the within matter. I would add only the observation that our Supreme Court has recognized that the category of weapons encompassed by the phrase “firearms capable of being concealed upon the person” does not include “shotguns, rifles, or other large weapons.” (In re Rameriz (1924) 193 Cal. 633, 646 [ 226 P. 914 , 34 A.L.R. 51 ].) Thus, when defendant committed the felony marijuana possession offense in 1980, section 12021(a), as then worded, did not operate so as to render possession of a shotgun by defendant a criminal act. It was not until some eight and one-half years following defendant’s conviction of the felony marijuana possession charge that the 1990 amendment to section 12021(a) made the possession of a shotgun by a convicted felon (such as defendant) a criminal act.
My analysis of the ex post facto challenge raised by defendant is set forth below.
The Constitutional Prohibition Against the Passage of Ex Post Facto Laws as Applied in This Case
Under both the federal and the state Constitutions, the passage of ex post facto laws is prohibited. 2 As our own Supreme Court noted just this past year, the United States Supreme Court itself has had recent occasion to address the precise formulation of the constitutional proscription against ex post facto laws: “Under that exclusive formulation, ‘ “any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’ (Collins [v. Youngblood (1990) 497 U.S. 37, 42 ( 111 L.Ed.2d 30, 39 , 110 S.Ct. 2715 )], quoting Beazell [v. Ohio (1925)] 269 U.S. [167, 169-170 ( 70 L.Ed. 216, 217 , 46 S.Ct. 68 )].)” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294 [ 279 Cal.Rptr. 592 , 807 P.2d 434 ], first italics added and fn. deleted.) 3 It is the second of these prohibitory categories which is of concern here; as formulated by our Supreme Court: “[T]hose [statutory provisions] which change the legal consequences of criminal *1293 behavior to the detriment of defendants[] cannot be applied to crimes committed before the measure’s effective date.” (Tapia, supra, at p. 297.) 4
The issue in this case, then, is whether the 1990 amendment of section 12021(a) which prohibits defendant’s possession of a shotgun impermissibly has made more burdensome his disability as a felon or “more burdensome the punishment” for defendant’s 1980 felony marijuana possession offense (or, alternatively, impermissibly effected a retrospective detrimental change in the legal consequences of defendant’s conviction for his 1980 felonious criminal behavior). This focused formulation of the issue can, in turn, be focused somewhat further:
It seems beyond argument that the 1990 amendment to section 12021(a) imposed an additional “burden” on defendant—after the statute was amended, defendant as a felon could no longer do certain things (under penalty of criminal sanction) that as a felon he could do before the statute was amended. 4
5 So, the critical “core” of the issue before us is the question of whether the additional burden placed on defendant by the 1990 amendment to section 12021(a) prohibiting as criminal previously lawful conduct by a felon constitutes an invalid increase in the penalty or invalid burden on his disability as a felon which defendant was made to suffer as a consequence of his 1980 felony marijuana possession offense or, instead, constitutes nothing more than a valid legislative “regulation” of conduct by convicted felons. In answering this question, I am guided by the United States Supreme Court’s admonitions that: (1) “Subtle ex post facto violations are no more permissible than overt ones” (Collins v. Youngblood, supra, 497 U.S. at p. 46 [ 111 L.Ed.2d at p. 41 ]); and (2) “[I]t is the effect, not the form, of the law that determines whether it is ex post facto.” (Weaver v. Graham (1981) 450 U.S. 24, 31 [ 67 L.Ed.2d 17, 24 , 101 S.Ct. 960 ], italics added.)
The majority quotes in part from In re Ramirez (1985) 39 Cal.3d 931, 936 [ 705 P.2d 897 ], as follows: “A retrospective law violates the ex post facto clauses when it ‘substantially alters the consequences attached to a crime already completed, and therefore, changes the “quantum of punishment.” ’ *1294 [Citations.]” This is the legal principle which shapes the core issue but the majority, after giving recognition to it, ignores it and concludes that “the new statute [in its application to defendant] only applies to an event occurring after its enactment, i.e., defendant’s possession of a shotgun six months after the statute passed.” (Maj. opn., ante, p. 1285.)
As discussed in greater detail later, the basic flaw in the majority’s analysis is that it fails to consider the new amendment’s prohibited ex post facto effect of increasing the disability and burden imposed for defendant’s 10-year-old felonious act of possessing marijuana for sale—irrespective of whether or not defendant did possess a firearm after January 1, 1990. The majority, in its analysis, “begs” the core issue, assumes section 12021(a) does not violate the ex post facto constitutional prohibition and then blithely proceeds with a discussion of the constitutional validity of penal enhancements based on “priors” with respect to the sentence to be imposed for a present conviction.
Section 12021(a)’s prohibition against the possession of firearms by convicted felons has been explicitly recognized as one of the “punishments and disabilities which normally are a consequence of the commission of an offense . . . because it imposes criminal sanctions upon a convicted felon as an incident of his or her conviction. [Citations.]” (Bradford v. Cardoza (1987) 195 Cal.App.3d 361, 365 [ 240 Cal.Rptr. 648 ].) 6 Indeed, as this court itself has stated: “The time has come to recognize with [] candor that ‘imprisonment’ represents only the first phase of society’s retribution against the convicted criminal. ‘Punishment’ in a variety of forms besets the parolee, the probationer and the ex-felon long after the completion of his prison term. As one writer has observed: ‘Ours is a penalty system of justice. Ex-prisoners continue to suffer from statutory and extra-legal penalties long after their release from prison.’ [Citation.] H] Upon his release from prison, the ex-felon cannot simply resume the life he led before prison as if nothing had happened. Besides the well-known informal discriminations, he or she *1295 confronts a battery of statutory disabilities. ... In addition, the ex-felon may not . . . possess a concealable weapon . . . .” (Sovereign v. People (1983) 144 Cal.App.3d 143, 148 [ 192 Cal.Rptr. 469 ].)
Thus, the 1990 expansion in the prohibitory scope of section 12021(a) does represent an increase in the punishment and expansion of the disability to be suffered as a consequence of a felony conviction—and, absent some countervailing legal principle of equal constitutional dignity, the retrospective application of that increase in punishment to those convicted felons, who, prior to January 1, 1990, committed felonious acts (of which they were later convicted) either prior to or after January 1, 1990, would run afoul of the constitutional proscription against ex post facto laws.
The People have argued that there are two such countervailing legal principles, but these arguments lack merit:
First, the People and the majority focus on the fact that the actual firearms possession for which defendant was convicted occurred after January 1, 1990, the effective date of the amendment to section 12021(a), and then go on to argue on the basis of that fact that section 12021(a) was not applied retrospectively in this case as an ex post facto law. This argument itself has two fundamental shortcomings:
(a) The argument might have merit if the amendment to section 12021(a) had provided that no one could possess a firearm after January 1, 1990; such an amendment then would have been a general legislative act prohibiting certain future conduct by all persons without regard to a person’s criminal status, and would not have had the effect of simply increasing the criminal penalty and disability of felons who had committed a felony prior to the amendment and been convicted of such. Given the limited application of section 12021(a), however, the only functional effect of the 1990 amendment to that section, insofar as felons whose only convictions are for felonies committed before January 1, 1990 are concerned, is to increase the criminal sanction/disability which attached as a consequence of the prior convictions —and, as noted earlier: “[I]t is the effect, not the form, of the law that determines whether it is ex post facto.” (Weaver v. Graham, supra, 450 U.S. at p. 31 [ 67 L.Ed.2d at p. 24 ], italics added.)
The majority brushes aside this portion of my analysis by creating a “strawman” and then knocking it down. The majority states that this portion of my analysis “is really an equal protection argument”—and then goes on to show why the 1990 amendment to section 12021(a) does not violate the constitutional guarantee of “the equal protection of the laws.” What the *1296 majority seems to have overlooked is the fact that a law which meets equal protection muster both facially and as applied, still must not violate the constitutional proscription against ex post facto laws—the two constitutional principles are neither coterminous nor mutually exclusive.
(b) The other flaw in the People’s first argument lies in the fact that they have misconstrued and misunderstood what it is that constitutes the punishment and increased burden occasioned by the 1990 amendment to section 12021(a), as applied to convicted felons who committed felonies prior to January 1, 1990. It is not the subsequent conviction based on a defendant’s after-the-fact (more accurately, “after-the-amendment”) possession of a firearm which is the ex post facto burden imposed by the 1990 amendment to section 12021(a); rattier, the ex post facto burden imposed by the 1990 amendment to section 12021(a) is the prohibition (under sanction of criminal conviction) against possessing any “long arm.” This burden existed as soon as the amendment went into effect—and operated so as to impose an increased disability on convicted felons such as defendant whether or not they possessed any such arm and whether or not they ever were convicted of the same. (See Sovereign v. People, supra, 144 Cal.App.3d 143 , for a review and discussion of an analogous issue.)
One of the fundamental deficiencies in the majority’s position is the fact that it has made precisely the same mistake as the People in viewing the subsequent conviction of defendant for possessing the shotgun as being “the” burden, punishment or disability implicated on ex post facto grounds in this case.
Second, the People argue that the 1990 amendment to section 12021(a) is valid because it (a) represents a legitimate exercise of the legislative police power with respect to the control of dangerous weapons in the interest of public safety and (b) only draws a distinction between those who are felons and those who are not, a permissible distinction in the context of firearms control legislation. 7 This argument also lacks merit. The fact that a statute is otherwise valid does not justify or legitimize a violation of the constitutional *1297 proscription against ex post facto laws by that statute. (In a similar vein, see my brief discussion concerning the majority’s characterization of another portion of my analysis as being “really an equal protection argument,” ante.) Assuming, for precisely the reasons stated by the People in this second argument, that the 1990 amendment to section 12021(a) is a valid law as applied to persons who are convicted of felonies committed on or after January 1, 1990, the retrospective application of that amendment to felons convicted of felonies committed before January 1, 1990, such as defendant, is not valid. Once again, I emphasize that we are to look to the effect of the law—not its form.
Apparent Contrary Authority
My research has revealed two published opinions which suggest, at first glance, a result which is contrary to the position I have taken on this issue. Upon closer examination, however, neither case stands as persuasive contrary authority:
(1) In People v. Camperlingo (1924) 69 Cal.App. 466 [ 231 P. 601 ], the Court of Appeal upheld, in the face of a challenge based on the constitutional prohibition against ex post facto laws, a “felon in possession” conviction notwithstanding the fact that the felony of which defendant had been convicted was committed prior to the passage of the act which created the crime of “felon in possession.” The court’s analysis of the ex post facto issue (id. at pp. 470-473), however, is faulty in at least two different regards:
(a) Camperlingo relied heavily on the opinion rendered in People v. Smith (1918) 36 Cal.App. 88 [ 171 P. 696 ]. In Camperlingo's words: “Regarding the point that... the statute in question seeks to . . . punish [the defendant] for an offense which was committed prior to the enactment of the statute here under consideration—it may be said that legislation of a similar character has heretofore received judicial approval in the case of People v. Smith, . . ." ( 69 Cal.App. at p. 471 .) Camperlingo's reliance on Smith was misplaced. In Smith , the court merely concluded that the constitutional proscription against the passage of ex post facto laws was not violated by a criminal statute which enhanced, on the basis of the defendant’s prior criminal conduct, the penalty to be suffered for a violation of that statute. I agree with Smith in that regard—a penalty enhancement does not constitute a retrospective additional punishment for a prior conviction based on felonious conduct occurring prior to the statutory creation of the enhancement, but, rather, merely constitutes an increase in a defendant’s punishment for the subsequent conviction in accord with his or her recidivistic tendencies. *1298 (See People v. Shields (1991) 228 Cal.App.3d 1239, 1243 [ 279 Cal.Rptr. 403 ].) This has nothing to say, however, about the ex post facto effects of a statutory enactment such as the 1990 amendment to section 12021(a).
The majority falls prey to the same shortcoming in analysis as occurred in Camperlingo . Virtually all of the authority upon which the majority places its primary reliance are cases dealing with penalty enhancements imposed in connection with the commission of a subsequent crime, not cases dealing with the increase of disabilities, burdens or penalties previously imposed on or resulting from criminal acts for which defendant was previously convicted:
(i) In People v. James (1925) 71 Cal.App. 374 [235 R 81] (a case in which an ex post facto analysis properly could have been applied to the “felon in possession” facts, but was not), the court stated: “A law is not objectionable as ex post facto which in providing for the punishment of future offenses authorizes the offender’s conduct in the past to be taken into account and the punishment to be graduated accordingly.” (Id. at p. 378.)
(ii) In People v. Mink (1985) 173 Cal.App.3d 766 [ 219 Cal.Rptr. 291 ] (a case having to do with the imposition of a five-year sentence enhancement), the court stated: “ ‘The law is well established that... the increased penalty for a prior is attributable solely to the new, rather than the former, crime and its purpose is to discourage recidivist criminal conduct [citations].’ ” (Id. at pp. 770-771, quoting from People v. Johnson (1979) 95 Cal.App.3d 352, 357 [ 157 Cal.Rptr. 150 ].)
(iii) In In re Ramirez, supra, 39 Cal.3d 931 (a case concerning a challenged statutory scheme for governing the award of sentence reduction credits to prisoners), the Supreme Court stated: “It is true that the 1982 amendments apply to petitioner only because he is a prisoner and that he is a prisoner only because of an act committed before the 1982 amendments. Nonetheless, the increased sanctions are imposed solely because of petitioner’s prison misconduct occurring after the 1982 amendments became effective. In other words, the 1982 amendments apply only to events occurring after their enactment. If any aspect of prison life is unconnected to a prisoner’s original crime, it would seem to be the sanctions for his misconduct while in prison. Accordingly, the 1982 amendments, which change the sanctions for that misconduct, do not relate to petitioner’s original crime and are not retrospective under Weaver." (Id. at pp. 936-937, first italics added.) As in the other “enhancement cases,” this case concerned a situation in which the enhanced penalties were imposed with regard to subsequent conduct which was separately and independently actionable without reference to the prior conduct/conviction: “First, a prisoner may lose accumulated *1299 good behavior credits for ‘any act. . . which . . . could be prosecuted . . . as a misdemeanor or a felony, or any act of misconduct described as a serious disciplinary infraction by the Department of Corrections.’ (§ 2931.)” ( 39 Cal.3d at p. 933 .)
(iv) Finally, in People v. Venegas (1970) 10 Cal.App.3d 814 [ 89 Cal.Rptr. 103 ] (a case concerning the applicability of an increase in the maximum sentence for a “felon in possession” conviction, where the increase had been legislatively adopted after the prior felony had been committed), the court stated: “Section 12021, as amended in 1965, was on the books for years prior to defendant’s violation of section 12021 on March 12, 1969, and for which he was convicted. A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation. [Citation.]” (Id. at p. 823.) Venegas is somewhat different in principle than the above cases; however, it dealt only with the applicability of an increase in a penalty for the commission of a subsequent crime, the commission of which crime was a given.
(b) Further, Camperlingo makes the same mistake as the People in this case and assumes that an ex post facto challenge to a law can be met by pointing out that the Legislature has the police power to address the subject matter of the law and that the distinction drawn by the Legislature between classes of people under the law is a permissible one. I am unpersuaded by Camperlingo in this regard, just as I am unpersuaded by the People. (See discussion, ante.)
(2) In People v. McCloskey, supra, 76 Cal.App. 227 , the Court of Appeal also upheld a conviction on a “felon in possession” charge in the face of a challenge based on the constitutional prohibition against ex post facto laws. McCloskey, however, is of even less moment than Camperlingo insofar as the ex post facto issue here involved is concerned:
(a) There is nothing in the McCloskey opinion to indicate that the criminal act for which the prior felony conviction had been imposed occurred prior to the passage of the “felon in possession” law. Consequently, it is uncertain whether McCloskey is actually concerned with an ex post facto law.
(b) In McCloskey, the defendant’s ex post facto argument was limited to the contention that the Legislature can never make illegal the possession of something which had originally been possessed legally. This is clearly an argument without merit and the Court of Appeal’s rejection of the same bears no significance for this case.
Fallacies in the Majority’s Analysis
The above analysis reveals two basic fallacies in the majority’s position on the ex post facto issue raised in this case. I have already discussed both of *1300 these fallacies—and I repeat them here only to highlight and clarify the basis of my disagreement with the majority:
First, the majority has failed to recognize that the burden, punishment or disability which is implicated on ex post facto grounds in this case is the prohibition (under sanction of criminal conviction) against the possession of “long arms”—not the conviction actually suffered by defendant for possessing a shotgun.
Second, the majority has failed to properly distinguish between, on the one hand, cases that concern the interplay between the constitutional proscription against ex post facto laws and the validity of penalty enhancement provisions respecting subsequent convictions (constitutionally valid) and, on the other hand, cases that concern the interplay between the constitutional proscription against ex post facto laws and the validity of their provisions which have the effect of increasing the penalty respecting prior criminal conduct for which a defendant was previously convicted (constitutionally invalid).
Conclusion
The 1990 amendment to section 12021(a)—that is, the expanded scope of the section which now encompasses the possession of nonconcealable firearms by felons—can be validly applied only to those who have suffered a felony conviction for an offense which was committed on or after January 1, 1990. As to those whose only prior felony convictions relate to criminal offenses committed prior to January 1,1990, such as in the case before us on appeal, application of the 1990 amendment to section 12021(a) violates the constitutional proscription against ex post facto laws and is therefore void. Regarding the latter category of felons, such felons may, of course, be charged with and convicted of violating section 12021(a) for possessing concealable firearms. 8
In my view, defendant’s conviction of violating section 12021(a), as amended in 1990, cannot stand, and I would reverse the same.
Appellant’s petition for review by the Supreme Court was denied August 13, 1992.
Section 12021, subdivision (a) of the Penal Code will hereinafter be cited simply as section 12021(a).
The federal prohibition against ex post facto laws is found in article I, section 10, clause 1 of the United States Constitution. The state prohibition is found in article I, section 9 of the California Constitution.
Defendant has based his “ex post facto argument” on both the federal and the state Constitutions. However, for all practical purposes, the two Constitutions treat the issue in precisely the same manner and there is but one “ex post facto argument” to be made. ( Tapia, supra, 53 Cal.3d at pp. 295-297.)
I do not understand, as the majority suggests, that defendant is also relying on the second definition of an ex post facto law set forth in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386 , 390-392 [ 1 L.Ed. 648, 650 ], thereby contending that section 12021(a), as amended in 1990, aggravated his felony crime of possession of marijuana for sale in 1981.
I acknowledge that the mere fact that a statute creates an additional “burden,” alone, does not necessarily mean that the statute runs afoul of the ex post facto prohibition. As the People aptly point out, “[A] state may properly impose penalties for continuing once lawful conduct which has subsequently been declared illegal without triggering the prohibition against ex post facto laws.” (See Samuels v. McCurdy (1925) 267 U.S. 188, 193 [ 69 L.Ed. 568, 570 , 45 S.Ct. 264 , 37 A.L.R. 1378 ], and People v. McCloskey (1926) 76 Cal.App. 227, 229-230 [ 244 P. 930 ].)
Other cases share Bradfords recognition of section 12021 as one of the consequential “punishments and disabilities” attending a felony conviction:
(1) In People v. Taylor (1960) 178 Cal.App.2d 472 [ 3 Cal.Rptr. 186 ], at page 480, the Court stated that “section 12021 is one of the ‘penalties and disabilities’ imposed upon a convicted felon.” (In People v. Bell (1989) 49 Cal.3d 502 , at pages 545-546 [ 262 Cal.Rptr. 1 , 778 P.2d 129 ], our Supreme Court questioned Taylor’s reasoning in concluding that section 12021’s prohibition against firearms possession by convicted felons was one of the “penalties and disabilities” encompassed by the dismissal/release provisions of Penal Code section 1203.4, but it did not question Taylor’s general conclusion that section 12021’s prohibition “is one of the ‘penalties and disabilities’ imposed upon a convicted felon.”)
(2) In Ready v. Grady (1966) 243 Cal.App.2d 113 [ 52 Cal.Rptr. 303 ], at page 116, footnote 1, the court identified section 12021 as one of “[t]he many well known criminal penalties and disabilities.”
In support of this argument, the People quote from our Supreme Court’s opinion in People v. Bell, supra, 49 Cal.3d at page 544 :
“ ‘Penal Code, section 12021, is part of the legislative scheme originally promulgated in 1917 (Stats. 1917, ch. 145, p. 221, § 1) and commonly known as the Dangerous Weapons Control Act. . . . 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 [citation] and, specifically, “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, 24 Cal.2d 774, 782 [ 151 P.2d 517 ].)’ (People v. Washington (1965) 237 Cal.App.2d 59, 66 [ 46 Cal.Rptr. 545 ].) The law presumes the danger is greater when the person possessing the concealable *1297 firearm has previously been convicted of felony, and the presumption is not impermissible. (People v. Dubose (1974) 42 Cal.App.3d 847, 849-850 [ 117 Cal.Rptr. 235 ].)”
The 1990 amendment to section 12021(a) did not repeal and reenact the proscription against felons possessing firearms capable of being concealed upon the person. It merely broadened the prohibition to possession of all firearms, concealable or nonconcealable, by a felon. The prohibition against possession of concealable firearms has applied and continues to apply to all felons who possessed such a firearm before and/or after January 1, 1990. (Gov. Code, § 9605.)