PEOPLE v. DELACY

OPINION

MARGULIES, Acting P.J. —

Defendant Rick Charles Delacy was convicted of four counts of unlawful possession of firearms and one count of unlawful possession of ammunition. (Pen. Code, §§ 12021, subd. (c)(1), 12316, subd. (b)(1).) He challenges the constitutionality of section 12021, subdivision (c)(1), which prohibits the possession of firearms by persons convicted of specified misdemeanors, contending it violates the Second Amendment right to bear arms and equal protection. He also argues his conviction under section 12316, subdivision (b)(1) must be reversed because the trial court declined to instruct the jury on a mistake of fact defense and failed to answer adequately a jury question as to the mental state element required for conviction. Finally, defendant claims certain fees and fines should be stricken from the trial court's sentencing minute order because the trial court did not orally impose them at the sentencing hearing. We affirm.

All statutory references are to the Penal Code unless otherwise indicated.

I. BACKGROUND

Defendant's crimes were charged in two informations, arising from two separate incidents. In case No. CR142103 (the firearm case), defendant was charged with four felony counts of unlawful firearm possession. (§ 12021, subd. (c)(1).) The amended information alleged defendant's possession of firearms was unlawful because he had been convicted within the past 10 years of misdemeanor battery under section 242, one of the misdemeanors enumerated in section 12021, subdivision (c)(1).

Section 12021 restricts firearm possession by specified categories of persons, including felons and certain misdemeanants. (§ 12021, subds. (a), (c).) With exceptions not relevant here, section 12021, subdivision (c)(1) provides "any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, paragraph (1) of subdivision (a) of section 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. . . ."

In case No. CR 142660 (the ammunition case), defendant was charged with one felony count of unlawful possession of ammunition (§ 12316, subd. (b)(1)) and one count of receiving stolen property (§ 496, subd. (a)). The unlawful possession charge contained allegations that defendant's pos-session of ammunition was unlawful because of his prior conviction and that defendant was on bail or on his own recognizance in case No. CR 142103, at the time of the offense.

Section 12316, subdivision (b)(1) provides: "No person prohibited from owning or possessing a firearm under Section 12021 or [other specified statutes] shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition."

The firearms and ammunition were discovered during two probation searches of defendant's home in April and October 2008. During the first search, officers found four firearms, including a Remington 700, a Winchester 100, a Benelli Black Eagle, and a Savage Arms 110. When confronted, defendant told the officers, "There ain't nothing wrong with me having guns." Defendant later testified he possessed the guns for hunting. The second search uncovered shotgun shells in a camouflage bag in defendant's bedroom closet and in two storage tubs in the garage. Defendant told deputies the shells were for hunting.

Prior to trial in the firearm case, defendant moved to dismiss the information on the ground section 12021, subdivision (c)(1) violated the Second Amendment right to bear arms, as interpreted in the United States Supreme Court's decision in District of Columbia v. Heller (2008) 554 U.S. 570 [ 171 L.Ed.2d 637, 128 S.Ct. 2783] ( Heller). The trial court denied the motion, relying on People v. Flores (2008) 169 Cal.App.4th 568 [ 86 Cal.Rptr.3d 804] ( Flores), in which the court rejected a post- Heller challenge to section 12021, subdivision (c)(1).

The two cases were tried separately, beginning with a jury trial in the ammunition case in January 2009. The jury found defendant guilty of unlawful possession of ammunition and found true the special allegation defendant committed the offense while on bail or on his own recognizance in case No. CR142103. He was acquitted of the receiving stolen property charge. In March 2009, after the parties waived jury trial in the firearm case, the court found defendant guilty on the four charges of unlawful firearm possession. At a consolidated sentencing hearing, imposition of sentence was suspended, and defendant was placed on three years' probation.

II. DISCUSSION

A. Heller

Defendant renews his Second Amendment argument, contending section 12021, subdivision (c)(1) is unconstitutional under Heller.

The Second Amendment to the United States Constitution provides: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In Heller, the Supreme Court held the Second Amendment protects an individual right "to possess and carry weapons in case of confrontation," unconnected with service in a militia. ( Heller, supra, 554 U.S. at p. 592 [ 128 S.Ct. at p. 2797]; see also id. at pp. 627-630, 634-636 [ 128 S.Ct. at pp. 2817-2818, 2821-2822].) The court struck down a District of Columbia law effectively banning the possession of handguns in the home. ( Id. at pp. 628-632 [ 128 S.Ct. at pp. 2817-2819].)

More recently, in McDonald v. Chicago (2010) 561 U.S. ___[ 177 L.Ed.2d 894, 130 S.Ct. 3020] ( McDonald), the court held the Second Amendment right recognized in Heller is "fully applicable to the States." ( Id. at p. ___[ 130 S.Ct. at p. 3026] (plur. opn. of Alito, J.); See id. at pp. ___, ___ [ 130 S.Ct. at pp. 3058, 3088] (cone. opn. of Thomas, J.).) A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is "fundamental" to the American "scheme of ordered liberty" and is there-fore incorporated in the due process clause of the Fourteenth Amendment. ( McDonald, at pp. ___, ___[130 S.Ct. at pp. 3036, 3050] (plur. opn. of Alito, J.).) In a concurring opinion, Justice Thomas agreed with the plurality's characterization of the Second Amendment right as "fundamental." (561 U.S. at p. ___[ 130 S.Ct. at p. 3059] (cone. opn. of Thomas, J.).)

Although it struck down the District of Columbia handguns ban, Heller recognized and affirmed certain traditional limitations on the right to bear arms. As the court noted, the Second Amendment does not grant "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." ( Heller, supra, 554 U.S. at p. 626 [ 128 S.Ct. at p. 2816].) Heller identified an expressly nonexclusive list of "presumptively lawful regulatory measures," stating "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." ( Id. at pp. 626-627 fn. 26 [ 128 S.Ct. at pp. 2816-2817 fn. 26]; accord, McDonald, supra, 561 U.S. at p. ___[130 S.Ct. at p. 3047] (plur. opn. of Alito, J.) [reiterating these categories of permissible firearm regulations].) In so doing, Heller recognized that some individuals, presumably including felons and the men-tally ill, may be "disqualified" from exercising Second Amendment rights. ( Heller, at pp. 626-627, 635 [ 128 S.Ct. at pp. 2816-2817, 2822] ["Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."].)

B. The Second Amendment Claim

The Flores court relied on Heller's express authorization of statutes disqualifying felons from exercising Second Amendment rights to uphold the constitutionality of section 12021, subdivision (c). Although recognizing the defendant in Flores had been convicted of a misdemeanor, rather than a felony, the court held, "We find this [distinction] unconvincing. If, as Heller emphasizes, the Second Amendment permits the government to proscribe the possession of a firearm by any felon (including nonviolent offenders), we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by `means of force likely to produce great bodily injury.' [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses. [Citations.] Consequently, we do not read Heller to undermine the constitutionality of Flores's section 12031 [ sic: 12021] conviction." ( Flores, supra, 169 Cal.App.4th at p. 575.)

Defendant argues we should apply strict constitutional scrutiny to strike down section 12021, subdivision (c)(1), contrary to the approach of Flores. In holding the District of Columbia (D.C.) handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." ( Heller, supra, 554 U.S. at pp. 628-629 [ 128 S.Ct. at pp. 2817-2818], fn. omitted.) The court did, however, imply that some elevated level of scrutiny was appropriate by rejecting the "rational-basis" test as too lenient. As the court reasoned in a footnote, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." ( Id. at p. 628, fn. 27 [ 128 S.Ct. at pp. 2817-2818, fn. 27].)

When strict scrutiny applies, a law is constitutional only if it is "necessary to achieve a compelling state interest." ( People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [ 39 Cal.Rptr.3d 821, 129 P.3d 29].)

For purposes of constitutional analysis under Heller, however, there is a significant difference between the D.C. handgun ban and section 12021. The D.C. statute was one of general application that did not fit within the traditional regulations described by Heller as "presumptively lawful." ( Heller, supra, 554 U.S. at p. 627, fn. 26 [ 128 S.Ct. at pp. 2816-2817, fn. 26].) In contrast, as Flores held, section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction expressly listed by Heller as untouched by its holding. Relying on this reasoning, both California and federal decisions have upheld the type of "presumptively lawful" regulations identified in Heller, including prohibitions on firearm possession by certain "disqualified" persons, without applying constitutional scrutiny that balances the objectives of the statute against the means used to accomplish those ends. In U.S. v. Vongxay (9th Cir. 2010) 594 F.3d 1111 ( Vongxay), for example, the court determined that because Heller held that prohibitions on possession of weapons by felons are presumptively lawful, "felons are categorically different from the individuals who have a fundamental right to bear arms. . . ." ( Vongxay, at p. 1115, fn. omitted.) Accordingly, the court upheld the federal felon-in-possession statute ( 18 U.S.C. § 922(g)(1)), against a Second Amendment challenge without applying means-end scrutiny. ( Vongxay, at p. 1115.) Earlier federal decisions had used the same rationale in upholding felon-and misdemeanant-in-possession statutes, also without applying meansend scrutiny. (E.g., U.S. v. White (11th Cir. 2010) 593 F.3d 1199, 1205-1206; U.S. v. Rene E. (1st Cir. 2009) 583 F.3d 8, 12-16 [possession by minor]; In re U.S. (10th Cir. 2009) 578 F.3d 1195, 1200; U.S. v. McCane (10th Cir. 2009) 573 F.3d 1037, 1047; U.S. v. Anderson (5th Cir. 2009) 559 F.3d 348, 352.)

In People v. Yarbrough (2008) 169 Cal.App.4th 303, 312-314 [ 86 Cal.Rptr.3d 674] ( Yarbrough), this court rejected a Second Amendment challenge to the prohibition on carrying concealed firearms in section 12025, subdivision (a)(2), based on Heller's approval of certain traditional regulations. We stated: `Treating as criminal defendant's concealment of a firearm under his clothing on a residential driveway that was not closed off from the public and was populated with temporary occupants falls within the `historical tradition' of prohibiting the carrying of dangerous weapons in publicly sensitive places." ( Yarbrough, at p. 314.) This was also the implicit reasoning Flores, which did not apply means-end scrutiny in upholding section 12021, subdivision (c)(1). ( Flores, supra, 169 Cal.App.4th at pp. 574-576; see also People v. Villa (2009) 178 Cal.App.4th 443, 445-448 [ 100 Cal.Rptr.3d 463]; People v. James (2009) 174 Cal.App.4th 662, 674-677 [ 94 Cal.Rptr.3d 576].)

The Third Circuit Court of Appeals analyzed the issue at more length in evaluating title 18 United States Code section 922(k), which prohibits the possession of weapons with obliterated serial numbers. ( U.S. v. Marzzarella (3d Cir. 2010) 614 F3d 85 ( Marzzarella).) Analyzing Heller's intent in holding certain categories of statutes unaffected by the Second Amendment, Marzzarella noted there were two possible explanations. Heller could have meant that the categories are presumptively lawful either "because they regulate conduct outside the scope of the Second Amendment" or "because they pass muster under any standard of scrutiny." ( Marzzarella, at p. 91.) Settling on the first alternative, the court concluded the "better reading" is "that these longstanding limitations are exceptions to the right to bear arms." ( Ibid., fn. omitted.) Applying this reasoning, the court held, "The endorsement [in Heller] of prohibitions as opposed to regulations, whose validity would turn on the presence or absence of certain circumstances, suggests felons and the mentally ill are disqualified from exercising their Second Amendment rights." ( Id. at pp. 91-92, fn. omitted.)

Despite its holding, Marzzarella ultimately applied means-end scrutiny to section 922(k) of title 18 of the United States Code because the court was uncertain whether the ban on possession of altered weapons fit within the categories listed as exempt by Heller. (Marzzarella, supra, 614 F.3d at pp. 93-95.)

The lower appellate courts were therefore generally unanimous in rejecting the application of means-end scrutiny to statutes disqualifying felons and certain misdemeanants from weapons possession until an en banc decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614 F.3d 638 ( Skoien) and, more recently, U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 ( Chester), which follows Skoien. In Skoien, the court considered the constitutionality under Heller of title 18 United States Code section 922(g)(9), a statute prohibiting persons convicted of misdemeanor domestic violence from possessing weapons, framing the question as "whether Congress is entitled to adopt categorical disqualifications [on weapons possession]." ( Skoien, at p. 639.) The court rejected reliance on Heller's declaration of presumptive validity for long-standing prohibitions, holding this was "precautionary language," intended only to "warn readers not to treat Heller as containing broader holdings than the Court set out to establish." ( Skoien, at p. 640.) Following its own analytical route ( id. at pp. 641-643), Skoien concluded that it was possible for a "categorical limit on the possession of firearms" to be constitutional ( id. at p. 641). On the basis of footnote 27 of Heller, however, the court held that a valid categorical limit must satisfy more than a rational basis test. ( Skoien, at p. 641.) Applying what it characterized as "some form of strong showing (`intermediate scrutiny,' many opinions say)," the court upheld the statute after finding it "substantially related to an important governmental objective." ( Id. at p. 641.)

We conclude the Skoien approach gives too little weight to the "presumptively lawful" language of Heller. While Skoien is certainly correct the court intended to make clear through this language that its decision was limited in scope, the court was also intent on making clear what those limits are. There is no ambiguity in the language; Heller states, " nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . ." or other types of traditional weapons regulation. ( Heller, supra, 554 U.S. at pp. 626-627 [ 128 S.Ct. at pp. 2816-2817], italics added.) As Marzzarella held, Heller intended by this language to put certain recognized prohibitions outside the ambit of the Second Amendment right it had delineated. ( Marzzarella, supra, 614 F.3d at p. 91.) Emphasizing these limits, Marzzarella described the right outlined in Heller as "the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home." ( Marzzarella, at p. 92, fn. omitted, italics added.) Stated otherwise, the right announced in Heller does not render invalid otherwise lawful statutes of the types enumerated. Further, because the court's enumeration of traditional regulations was expressly noted to be nonexclusive, other, similar prohibitions are unaffected as well, as Flores held.

In any event, Skoien ultimately upheld the statute under consideration, a limited federal misdemeanant firearms disability statute, against the Second Amendment challenge. ( Skoien, supra, 614 F.3d at pp. 643-645.) It therefore provides no support for concluding that section 12021, subdivision (c)(1) is invalid, regardless of the type of scrutiny applied.

The limitations of the Skoien approach were rapidly made clear by a subsequent decision of the same court. In U.S. v. Williams (7th Cir. 2010) 616 F.3d 685 ( Williams), the court considered the constitutionality of the federal felon-in-possession ban ( 18 U.S.C. § 922(g)(1)). Rather than relying on the safe harbor for laws banning possession by felons in Heller, the court applied the intermediate scrutiny analysis it had previously adopted in Skoien. (Williams, at pp. 692-693.) Although the statute readily survived a facial challenge under that standard, the court concluded Heller's reference to traditional regulations as only "`presumptively lawful' "means such statutes are also subject to felon-by-felon "as applied" challenges. ( Williams, at p. 692.) It therefore considered whether the defendant's prior felony was such as to justify a prohibition on his personal possession of firearms. While Williams upheld application of the statute because the defendant had been convicted of a "violent felony" ( id. at p. 694), its approach raises the possibility that the federal felon-in-possession statute is invalid in the Seventh Circuit to the extent it prohibits persons convicted of nonviolent felonies from possessing weapons. ( See Williams, at p. 693 ["we recognize that [18 U.S.C] § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent . . ."].) The language of Heller gives no hint of such flexibility.

We do not agree that Heller intended to open felon-in-possession prohibitions and similar categorical weapons possession bans to constitutional means-end scrutiny. On the contrary, following virtually all other federal and California appellate courts, we read Heller's "presumptively lawful" language to do just the opposite. Accordingly, if section 12021, subdivision (c)(1) falls within the "presumptively lawful" regulations of Heller, as Flores held, it is immune from means-end scrutiny.

As discussed above, Flores found subdivision (c)(1) of section 12021 to be presumptively lawful under Heller because "we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by `means of force likely to produce great bodily injury.' [Citation.] The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses." ( Flores, supra, 169 Cal.App.4th at p. 575; see similarly In re U.S., supra, 578 F.3d at p. 1200 [ Heller categories also include those convicted of misdemeanor domestic violence because the conviction demonstrates a propensity for use of physical violence against others]; U.S. v. White, supra, 593 F.3d at p. 1206 [same].) Defendant distinguishes Flores, contending the portion of subdivision (c)(1) banning persons convicted of misdemeanor battery from possessing weapons is not within the Heller exemption because misdemeanor battery requires only a "simple touching" and "does not necessarily entail violence," in contrast to the predicate assault in Flores. We disagree with the characterization of battery as a nonviolent offense. Battery is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) As the trial court noted in denying defendant's motion to dismiss, battery, like assault, "presents a threat to public safety." As Flores held, if the Second Amendment permits the government to prohibit all felons (including nonviolent offenders) from possessing firearms, there is no reason the government cannot also prohibit firearm possession by misdemeanants who have shown a propensity to commit violence against others.

Defendant characterizes this as an "as applied" challenge. We conclude section 12021, subdivision (c)(1) is immune to such challenges if it is within the Heller safe harbor. Further, defendant has made no showing as to the nature or magnitude of the force he used in connection with his predicate offense.

Defendant also makes what he characterizes as a "facial" constitutional challenge, but it fails because it does not assert "` "[the] statute is invalid on its face and . . . incapable of any valid application."` "( Yarbrough, supra, 169 Cal.App.4th at p. 311.) As discussed above, he claims only that section 12021, subdivision (c)(1) cannot constitutionally be applied to any person convicted of a "nonviolent misdemeanor." He does not argue section 12021, subdivision (c)(1) cannot constitutionally be applied to a person convicted of a violent misdemeanor, such as the defendant in Flores. ( See Flores, supra, 169 Cal.App.4th at pp. 574-575.)

Finally, contrary to defendant's argument, we do not find any inconsistency or irrationality in the California rule permitting a person who is generally prohibited from possessing a firearm to use one in self-defense. ( See People v. King (1978) 22 Cal.3d 12, 24 [ 148 Cal.Rptr. 409, 582 P.2d 1000] ( King).) As defendant acknowledges, the King rule does not permit such a disqualified person to possess a firearm in anticipation of using it one day in self-defense. ( See People v. McClindon (1980) 114 Cal.App.3d 336, 339-340 [ 170 Cal.Rptr. 492].) Instead, King only recognized "when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021." ( King, at p. 24.) This limited exception to the general rule prohibiting firearm possession by persons convicted of certain crimes does not render section 12021, subdivision (c)(1) irrational or otherwise unconstitutional, nor does it bolster defendant's efforts to bring himself within the holding in Heller. As discussed above, Heller protects a right to keep and bear arms for self-defense in the home for persons who are not otherwise disqualified from possessing firearms. (See Heller, supra, 554 U.S. at pp. 627 fn. 26, 635-636 [ 128 S.Ct. at pp. 2816-2817 fn. 26, 2822].) Under section 12021, subdivision (c)(1), defendant is disqualified from exercising Second Amendment rights.

C. Equal Protection

Defendant next argues section 12021, subdivision (c)(1) violates equal protection because it prohibits firearm possession by persons convicted of the California misdemeanors specified in the statute, but not by persons convicted of similar offenses in other jurisdictions. In contrast to this subdivision, the provision of section 12021 barring firearm possession by convicted felons, subdivision (a)(1), applies to any person convicted of a felony "under the laws of the United States, the State of California, or any other state, government, or country. . . ." Defendant argues "[t]here is no reason to believe that persons convicted of the specified California misdemeanors are any more likely to commit anti-social acts with firearms than persons who have committed equivalent offenses out of state."

We note defendant did not raise an equal protection challenge in the trial court. His motion to dismiss the firearm charges raised only a Second Amendment challenge to section 12021, subdivision (c)(1). The Attorney General, however, does not argue defendant forfeited his equal protection argument. We conclude defendant did not forfeit this argument, and we will consider it on the merits, because "the issue is still one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts — a task that is suited to the role of an appellate court. [Citations.] We also confront the issue to avert any claim of inadequate assistance of counsel." ( Yarbrough, supra, 169 Cal.App.4th at pp. 310-311.)

"The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.] However, neither clause [of the United States or California Constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons. The necessary quantum of such reasons varies, depending on the nature of the classification." ( In re Evans (1996) 49 Cal.App.4th 1263, 1270 [ 57 Cal.Rptr.2d 314] ( Evans).) "In considering whether state legislation violates the Equal Protection Clause . . ., we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin, [citation] and classifications affecting fundamental rights [citation], are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy." ( Clark v. Jeter (1988) 486 U.S. 456, 461 [ 100 L.Ed.2d 465, 108 S.Ct. 1910].) "[M]ost legislation challenged under the equal protection clause is evaluated merely for the existence of a `rational basis' supporting its enactment. [Citations.] Under the latter analysis, the question is whether the classification bears a fair relationship to a legitimate public purpose." ( Evans, at p. 1270; see similarly People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14 [ 104 Cal.Rptr.3d 427, 223 P.3d 566].)

In the absence of a suspect class or a fundamental right, defendant's equal protection challenge to section 12021 would be evaluated under the rational basis test. In Evans, for example, the court considered an equal protection challenge to the provisions of section 12021, subdivision (c)(1) permitting certain individuals to seek relief from the statute's prohibition on firearm possession. ( Evans, supra, 49 Cal.App.4th at pp. 1269-1274.) In holding the classification should be analyzed under the rational basis test, the Evans court explained strict scrutiny is inapplicable because "[t]he classification of misdemeanants does not involve a typically suspect classification such as race or sex" and "[t]he private right to bear arms is not a `fundamental' right" under the Second Amendment. ( Evans, at p. 1270.)

The United States Supreme Court's recent Second Amendment jurisprudence has called into question the latter conclusion. Following its determination in Heller that the right to bear arms is a private right guaranteed by the Second Amendment ( Heller, supra, 554 U.S. at p. 591 [ 128 S.Ct. at p. 2797]), the court held in McDonald that this right is "fundamental" for purposes of incorporation in the due process clause of the Fourteenth Amendment. (See McDonald, supra, 561 U.S. at pp. ___, ___[130 S.Ct. at pp. 3036, 3050] (plur. opn. of Alito, J.); see also id. at p. ___[ 130 S.Ct. at p. 3059] (cone. opn. of Thomas, J.).) Because section 12021, subdivision (c)(1) deprives certain misdemeanants of this right for a period of 10 years, it could be argued that the statute "affects" a fundamental right and, for that reason, is subject to strict scrutiny under traditional doctrine. (E.g., Clark v. Jeter, supra, 486 U.S. at p. 461.)

This issue was addressed recently by the Ninth Circuit in Vongxay, supra, 594 F.3d 1111, in which the defendant raised an equal protection challenge to the federal felon-in-possession statute. ( Id. at p. 1118.) The court rejected the defendant's argument that strict scrutiny should apply, reasoning the statute did not affect a fundamental right because the defendant belonged to the class of persons who may be disqualified from exercising Second Amendment rights under Heller. As the Ninth Circuit explained: "[T]he Supreme Court has purposefully differentiated the right to bear arms generally from the more limited right held by felons. [Citation.] Therefore, whatever standard of review the Court implicitly applied to Heller's right to keep arms in his home is inapplicable to Vongxay, a felon who was explicitly excluded from Heller's holding." ( Vongxay, at p. 1118.) The Vongxay court accordingly applied pre- Heller case law, specifically Lewis v. United States (1980) 445 U.S. 55 [ 63 L.Ed.2d 198, 100 S.Ct. 915], that had established rational basis as the standard of scrutiny for equal protection challenges relating to the right to bear arms. ( Vongxay, at pp. 1118-1119; see similarly Warden v. Nickels (W.D.Wn. 2010) 697 F.Supp.2d 1221, 1226-1227 [applying rational basis test to equal protection claim regarding weapons possession].) We find the Vongxay analysis persuasive and follow it here. (10) Because misdemeanants subject to section 12021, subdivision (c)(1) are disqualified to the same extent as felons from exercising Second Amendment rights ( Flores, supra, 169 Cal.App.4th at p. 575), they can claim no "fundamental" right that would invoke elevated scrutiny under the equal protection clause. As a result, the statute is subject only to a rational basis analysis.

We find no basis for applying intermediate scrutiny under the authority of Skoien and Chester, the primary authorities cited by the dissent. As discussed above, Skoien rejected, wrongly in our view, any consideration of the presumption of lawfulness afforded certain traditional regulations by Heller. The dissent fails to mention Heller's singling out of certain traditional regulations as presumptively lawful, let alone to explain why section 12021, subdivision (c)(1) does not fall within those categories. Yet even if we accept Skoien on its own terms, it would not require the application of intermediate scrutiny in the context of an equal protection challenge, as the dissent concludes. Skoien and Chester featured Second Amendment challenges to the federal weapons possession ban for persons convicted of misdemeanor domestic violence. The defendants in Skoien and Chester raised no claims under the Fifth or Fourteenth Amendments, which contain the guarantee of equal protection. Had equal protection claims been raised, these courts may well have applied a different level of scrutiny than they applied to the Second Amendment claims, since the respective claims arise under different constitutional provisions and are subject to different governing authority. In any event, because no equal protection claim was made in Skoien and Chester, these decisions provide no authority for applying elevated scrutiny to defendant's equal protection claim here.

In footnote 3, the dissent notes that " Heller seems to have no quarrel with felon restrictions," implying that Heller's disqualification reaches only felon-in-possession statutes, not those affecting misdemeanants. As noted above, we agree with Flores, supra, 169 Cal.App.4th 568, 575, that the reasoning in Heller that insulates felon-in-possession statutes applies as well to statutes governing misdemeanants.

Ultimately, application of heightened scrutiny is not essential to the equal protection analysis of the dissent. Because the dissent concludes there is no rational basis for excluding out-of-state misdemeanants from section 12021, subdivision (c)(1), its analysis would find the ` statute unconstitutional wholly apart from Heller and the Second Amendment.

Having settled the level of scrutiny, we turn to the substance of the argument. Under the rational basis test, the question is whether the Legislature's differing treatment of similarly situated groups bears a fair relationship to a legitimate public purpose. ( See Evans, supra, 49 Cal.App.4th at p. 1270.) We find two separate rational bases for the failure of section 12021, subdivision (c)(1) to include out-of-state misdemeanants. Critical to both these justifications is the widely varying nature of misdemeanor crimes. It is no accident that section 12021 precludes all felons, regardless of the nature or jurisdiction of their felony, from possessing guns ( id., subd. (a)(1)), but does not similarly preclude all misdemeanants. Instead, subdivision (c)(1) carefully enumerates the particular misdemeanors that disqualify a person from weapons possession. The Legislature has made a judgment that all crimes serious enough to be classified as felonies are serious enough to justify depriving persons committing those crimes of the right to bear arms. Conversely, the careful discrimination among misdemeanor crimes in subdivision (c)(1) reflects the Legislature's recognition that not all misdemeanors, which vary widely in substance and seriousness, suggest that the violator cannot responsibly possess weapons.

This diversity has two consequences. First, it raises the concern that other jurisdictions might not treat misdemeanor crimes, or at least some misdemeanor crimes, with the same level of due process afforded in California. California law restricts possession of firearms by persons convicted of the misdemeanors enumerated in section 12021, subdivision (c)(1) only after providing representation by counsel (see Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 527 [ 102 Cal.Rptr. 45] [defendant charged with any misdemeanor has right to counsel under Cal. Const.]) and notice of the weapons restriction (§ 12021, subd. (d)(2)). Such protections, particularly the latter requirement, may not be afforded in other jurisdictions.

The dissent argues there was no evidence in the record that defendant was provided the required warning at the time of his conviction. Whether defendant was personally afforded the warnings, however, is irrelevant to the equal protection argument. Provision of the warning is required by statute in California, but it would likely not be provided in other jurisdictions. This distinction alone provides a rational basis for the Legislature's failure to include out-of-state convictions in the statute, regardless of whether defendant personally received the required warning.

Second, the diversity makes identifying parallel misdemeanors in other states a daunting task. Enumerating the misdemeanors subject to the section 12021 ban for each state individually, as subdivision (c)(1) does for California, would be difficult, if not impossible, because it requires the careful parsing of the criminal codes of 49 other states. The Legislature cannot be required to scrutinize each state's laws to determine whether misdemeanors exist that are identical to the California misdemeanors listed in subdivision (c)(1). In theory, the Legislature could have identified general classes of out-of-state misdemeanors subject to the ban. By identifying individual misdemeanors in subdivision (c)(1), however, the Legislature has already indicated that listing general classes of misdemeanors is not a satisfactory approach. If that were sufficient, the Legislature could have listed general classes for California misdemeanors rather than specifically enumerating them. Further, even if the Legislature could identify general categories of out-of-state misdemeanors, the elements of the offenses may differ among the states, making it difficult for an offender to know whether a particular out-of-state misdemeanor is included in a category subject to the ban, and thereby raising issues of due process. (See U.S. v. Moore (7th Cir. 2008) 543 F.3d 891, 897.) In short, as a practical matter it would be difficult for the Legislature to extend section 12021, subdivision (c)(1) to misdemeanor crimes committed in other states in a fair and equitable manner.

The dissent cites two decisions finding statutes unconstitutional because they made distinctions that were not supported by a rational basis. ( Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424 [ 110 Cal.Rptr.3d 498]; Doe v. Saenz (2006) 140 Cal.App.4th 960 [ 45 Cal.Rptr.3d 126].) Our decision is not in conflict with either of these decisions, which feature considerably different circumstances. In Walgreen, the court held that a local ordinance banning tobacco sales in traditional pharmacies but not other retail stores containing a pharmacy made an irrational distinction. ( Walgreen, at pp. 437-444.) In Saenz, the court found irrational a statute that disqualified persons who committed potentially nonviolent crimes from working in community care facilities but not persons convicted of more serious, violent crimes. ( Id. at pp. 991-993.)

Both of these concerns, the protection of a defendant's due process rights and the difficulty of crafting effective legislation, constitute legitimate governmental concerns that are sufficient to justify the Legislature's decision not to include out-of-state misdemeanants under section 12021. Accordingly, the statute does not deny defendant equal protection of the laws by excluding such persons.

A conclusion that the failure to include out-of-state misdemeanants is not supported by a rational basis would have ramifications beyond section 12021, subdivision (c)(1), since it suggests that other statutes relying only on in-state convictions are similarly invalid. Most notable among these is section 12021, subdivision (e), which precludes firearms possession by juveniles who have committed certain California offenses.

In this connection, we note the United States Supreme Court has upheld federal firearm disability law sentencing enhancements despite recognizing they can result in different enhancements for similar circumstances, depending upon the state of the defendant's original conviction. In Logan v. United States (2007) 552 U.S. 23 [ 169 L.Ed.2d 432, 128 S.Ct. 475], the defendant argued his sentence enhancement under section 924(e)(1) of title 18 of the United States Code was invalid because his prior conviction would have been disregarded had he been convicted in certain other states. ( Logan, at p. 26.) After reviewing the statutory history, the court upheld the enhancement, concluding Congress had a valid reason for structuring the statute in the manner it selected. ( Id. at pp. 35-36.) In the same way, the different consequences from in-state and out-of-state misdemeanor convictions under section 12021, subdivision (c)(1) must be upheld because our Legislature could have had valid reasons for its legislative decision.

D.-F

See footnote, ante, page 1481.

D. The Mistake of Fact Instruction

1. Background

Prior to the jury trial in the ammunition case, defendant submitted a proposed jury instruction on the defense of mistake of fact. Defendant argued he did not know it was unlawful for him to possess ammunition because the judge in his 2006 battery case told him he could continue to possess guns during hunting season. The trial court declined to give the requested instruction. The court noted unlawful possession of ammunition under section 12316, subdivision (b)(1) is a general intent crime, which requires proof the defendant knew he possessed ammunition, but does not require proof the defendant knew it was illegal to possess ammunition.

Defendant's proposed instruction, which was based on CALCRIM No. 3406, stated: "The defendant is not guilty of Possession of Ammunition, as charged in Count One if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit Possession of Ammunition, as charged in Count One. [¶] If you find that the defendant believed that the Court had allowed him [to] possess ammunition during hunting season and if you find that belief was reasonable, he did not have the specific intent or mental state required for Possession of Ammunition, as charged in Count One. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for Possession of Ammunition, as charged in Count One, you must find him not guilty of that crime."

During the jury trial, defendant testified he was an avid hunter and typically kept 1,000 rounds of ammunition on hand. Defendant testified he entered a plea of no contest to battery in 2006. He testified the firearms that were seized from his home in the April 2008 search were registered.

During defendant's direct testimony, the trial court, consistent with its pretrial ruling, sustained relevancy objections to questions about whether the probation order or the probation department in the battery case notified defendant he could not possess guns or ammunition.

2. Analysis

On appeal, defendant contends the trial court erred by refusing to give the mistake of fact instruction. Defendant claims he was entitled to the instruction because the judge in the battery case told him he could possess guns during hunting season, and because he received no notice he would be prohibited from possessing guns and ammunition for 10 years. We disagree.

We note initially defendant is incorrect in asserting the evidence in the jury trial in the ammunition case supports his argument he was told he could possess guns during hunting season. Defendant cites to his counsel's argument in the subsequent court trial in the firearm case, at which defendant testified he understood his plea in the battery case did not preclude him from possessing guns during hunting season. As noted above, the trial court sustained relevancy objections to this line of questioning in the jury trial. There was no evidence supporting this argument in the jury trial.

In the court trial in the firearm case, defendant testified he discussed his firearms with the judge in the 2006 battery case, and a resulting "stipulation" (which is not in the record) restricted his possession of guns to hunting season. He did not testify the judge in the battery case or anyone else told him the statutes prohibiting possession of firearms and ammunition by certain convicted criminals did not apply to him.

In any event, defendant was not entitled to a mistake of fact instruction based on his alleged lack of notice of the 10-year prohibition on possession of firearms and ammunition resulting from his battery conviction. The relevant ammunition statute, section 12316, subdivision (b)(1), does not state notice of illegality is an element of the crime. The firearm statute, section 12021, provides the court shall, at the time a judgment of conviction of a felony or enumerated misdemeanor is imposed, give notice to the defendant of the prohibition on firearm possession resulting from the conviction; however, the statute expressly specifies "[f]ailure to provide the notice shall not be a defense to a violation of this section." (§ 12021, subd. (d)(2).) As a result of his battery conviction, defendant was prohibited under section 12021, subdivision (c)(1) from possessing firearms for 10 years, regardless of whether he received notice of the prohibition. (§ 12021, subds. (c)(1), (d)(2).) And, because he was "prohibited from owning or possessing a firearm under section 12021," he was also prohibited from owning or possessing ammunition. (§ 12316, subd. (b)(1).)

Defendant's asserted lack of knowledge of the illegality of his possession of ammunition was a mistake of law, not a mistake of fact. "`For criminal liability to attach to an action, the standard rule is that "there must exist a union, or joint operation of act and intent, or criminal negligence."` [Citation.] Generally, the prosecution must prove some form of guilty mental state. [Citation.] A defendant may refute guilt by showing a mistake of fact disproving criminal intent. [Citation.] A person is usually considered incapable of committing a crime if he or she `committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.' (Pen. Code, § 26.) . . . `"`"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense."`"` [Citation.]" ( People v. Meneses (2008) 165 Cal.App.4th 1648, 1661.) "In determining whether a defendant's mistaken belief disproves criminal intent, the courts have drawn a distinction between mistakes of fact and mistakes of law. [Citation.] While a mistake of fact usually is a defense, a mistake of law usually is not. It is commonly said that ignorance of the law is no excuse. [Citation.]" ( Ibid.)

In People v. Snyder (1982) 32 Cal.3d 590 ( Snyder), the Supreme Court held a defendant's asserted mistake as to her legal status as a felon was a mistake of law, not a mistake of fact, and therefore provided no defense to a charge of being a felon in possession of a firearm. ( Id. at pp. 592-593.) The Snyder court stated: "[L]ack of actual knowledge of the provisions of Penal Code section 12021 [the firearm statute] is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section." ( Id. at p. 593.) Similarly, here, defendant's asserted mistake as to whether his misdemeanor battery conviction made it unlawful for him to possess guns or ammunition was a mistake of law, not a mistake of fact.

A mistake of law is not a defense to a general intent crime. ( People v. Vineberg (1981) 125 Cal.App.3d 127, 137.) As the trial court instructed, and as defendant concedes, possession of ammunition, the crime defined in section 12316, subdivision (b)(1), is a general intent crime; a general intent to commit the proscribed act is sufficient to sustain a conviction. ( See Snyder, supra, 32 Cal.3d at p. 592 [possession of firearm under § 12021]; People v. Spirlin (2000) 81 Cal.App.4th 119, 130 [same]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922 ( Jeffers) [same].) Accordingly, defendant's alleged mistake was not a defense to the charge of unlawful possession of ammunition under section 12316, subdivision (b)(1).

Finally, defendant argues he was entitled to a mistake of fact instruction based on People v. Bray (1975) 52 Cal.App.3d 494 ( Bray), but that case is distinguishable. In Bray, the defendant entered a plea of guilty in Kansas to being an accessory after the fact and was placed on two years' summary probation, which he successfully completed. ( Id. at p. 496.) The defendant subsequently sought to register to vote in California, stated he was uncertain whether he had been convicted of a felony, and filled out an explanatory form about the Kansas offense; he was permitted to vote. ( Ibid.) The defendant later applied for a job as a security guard. On the application he stated he had not been convicted of a felony and explained the circumstances of his arrest and probation in Kansas. ( Ibid.) The state Bureau of Collection and Investigative Services registered him as a guard. ( Ibid.) On subsequent job applications he stated his uncertainty as to his status while explaining the circumstances of his arrest and probation. ( Id. at p. 497.) After the defendant was convicted of being a felon in possession of a concealable firearm, the Court of Appeal held under these unusual circumstances the trial court had erred in refusing to instruct the jury on "mistake or ignorance of fact and knowledge of the facts which make the act unlawful," i.e., the defendant did not know his prior offense was a felony. ( Id. at pp. 495, 499.)

The Bray court stated such instructions are not required every time a defendant claims he did not know he was a felon. ( Bray, supra, 52 Cal.App.3d at p. 499.) The court emphasized the defendant had been "convicted in Kansas of what for California is an unusual crime," and "on more than one occasion had been led to believe by state regulatory agencies he was not a felon." ( Ibid.) The court stated: "It is only in very unusual circumstances such as these that the giving of these instructions is necessary." ( Ibid.) In Snyder, the Supreme Court distinguished Bray, noting the defendant in Snyder "made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status." ( Snyder, supra, 32 Cal.3d at pp. 594-595.)

Here, in contrast to the defendant in Bray, who did not know and was unable to determine whether he had been convicted of a felony, defendant did not allege he had any misunderstanding as to the nature of his prior conviction. He did not claim he was unaware he had been convicted of misdemeanor battery, nor did he claim the judge in the battery case or anyone else misled him about that fact. Indeed, defendant testified in both the ammunition case and the firearm case about his battery conviction. Defendant also did not argue he obtained the ammunition after making a full disclosure of his battery conviction to governmental officials and receiving assurances the conviction did not prohibit him from possessing ammunition. Instead, defendant's only alleged misunderstanding was as to the statutorily mandated consequences of his battery conviction, i.e., defendant allegedly was unaware sections 12021, subdivision (c)(1) and 12316, subdivision (b)(1) prohibit (for 10 years) possession of firearms and ammunition by persons convicted of misdemeanor battery. This alleged misunderstanding was a mistake of law and provided no defense to the charges against defendant. ( See Snyder, supra, 32 Cal.3d at pp. 592-593.)

E. The Jury's Question

1. Background

During the jury's deliberations in the ammunition case, the jury sent the following question to the court: "Is it a requirement of conviction in Count 1 [the ammunition charge] that [defendant] knew that it was a violation of his probation to possess ammunition?" After a discussion with counsel, the court sent a written response to the jury: "Knowledge that it is unlawful to possess ammunition is not an element of the crime charged in Count 1."

2. Analysis

Defendant contends the trial court's response to the jury's question was incomplete and inadequate. We disagree.

Without citation to the record, defendant continues to assert he was told by the judge in the battery case he could lawfully possess guns and ammunition despite his misdemeanor battery conviction (which, under the governing statutes, disqualified him from possessing guns and ammunition, see § 12021, subd. (c)(1), 12316, subd. (b)(1)). Defendant states: "[Defendant] was told by his first judge that he could lawfully possess guns and ammunition notwithstanding his misdemeanor battery conviction. As such, he had no knowledge his possession of the ammunition was unlawful. The trial judge should have so instructed the jury." However, as discussed above, there was no evidence on this point in the jury trial in the ammunition case. Defendant testified only about this issue in the subsequent court trial in the firearm case. The trial judge was not obligated to instruct the jury about the alleged significance of testimony defendant had not yet given.

As noted above, even in the subsequent court trial, defendant's testimony did not go as far as he now asserts. Defendant testified he discussed his firearms with the judge in connection with his plea in the battery case, and a "stipulation" was entered restricting his possession of guns to hunting season. He did not testify the judge told him the firearm and ammunition laws did not apply to him or were suspended by his plea deal or his probation order in the battery case.

Defendant also argues "a lack of knowledge of the contraband nature of the ammunition should be a defense." Defendant contends the court should have instructed the jury on this point and was required to "cite the jury to what the prosecutor had to prove and whether [defendant's] lack of intent to commit a crime undermined the offense charged." However, when counsel discussed with the trial court the appropriate response to the jury's question, defendant did not raise the argument a lack of knowledge of the contraband nature of the ammunition should be a defense. Instead, defense counsel stated only that defendant had not violated his probation.

In any event, the court's response was appropriate. The jury appears to have been confused about the relationship between the conditions of defendant's probation in the battery case and the elements of the ammunition charge. Defendant's probation status was not an element of the ammunition charge. The trial court responded by correctly instructing the jury that knowledge it is unlawful to possess ammunition was not an element of the crime charged; as discussed above, possession of ammunition under section 12316, subdivision (b)(1) is a general intent crime. ( See Snyder, supra, 32 Cal.3d at p. 592 [possession of firearm]; People v. Spirlin, supra, 81 Cal.App.4th at p. 130 [same]; Jeffers, supra, 41 Cal.App.4th at p. 922 [same].) A general intent to commit the proscribed act, i.e., to possess ammunition, is sufficient. No specific intent is required. Accordingly, it was not necessary to prove defendant knew it was unlawful to possess ammunition.

The Jeffers case, on which defendant relies, does not support his argument. In Jeffers, the defendant was convicted of being a felon in possession of a firearm after he delivered a box wrapped in a paper bag to a gun store at the request of a friend. The defendant claimed he was not aware the box contained a gun. ( Jeffers, supra, 41 Cal.App.4th at pp. 919-922.) The appellate court held the trial court erred by failing to instruct on general criminal intent and refusing to give the defendant's pinpoint instruction on his defense he had no knowledge he was in possession of a gun. ( Id. at pp. 920-921, 922-925.) Because of the lack of a general intent instruction, "the jury reasonably could have believed the only issue to be decided was whether defendant had knowledge a gun was in the package even if that knowledge was not acquired until he arrived at the gun shop and even if possession was not intentional." ( Id. at p. 924.)

Here, in contrast, the trial court did instruct the jury on general criminal intent. ( See People v. Padilla (2002) 98 Cal.App.4th 127, 135-136 [ Jeffers was not controlling where trial court instructed on general criminal intent].) Moreover, in contrast to the facts in Jeffers, defendant did not claim he did not know he possessed, or did not intend to possess, the ammunition in his house.

The instruction, based on CALCRIM No. 252, stated in relevant part: "The crimes charged in Counts One and Two require proof of the union or joint operation of act and wrongful intent. The following crimes required general criminal intent: Possession of ammunition, as charged in Count One. . . . For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose. However, it is not required that he or she intend to break the law. . . ."

F. The Sentence

1. Background

Prior to sentencing, a probation officer prepared a presentence report recommending defendant be placed on probation for three years in both the firearm case and the ammunition case, under specified terms and conditions. The listed conditions included payment of: (1) court security fees of $80 in the firearm case ($20 for each count of conviction) and $20 in the ammunition case (§ 1465.8); (2) a restitution fine of $200 in each case (§ 1202.4); and (3) a probation revocation restitution fine of $200 in each case, to be suspended unless probation is revoked (§ 1202.44).

At the sentencing hearing, defendant's counsel objected to certain items in the presentence report, including the calculation of custody credits. After hearing argument from counsel, the court suspended imposition of sentence in both the firearm case and the ammunition case, and placed defendant on probation for three years. The court orally ordered defendant to pay a presentence report fee of $560, and an annual supervision fee not to exceed $240 (§ 1203.1b). In addition, as to both cases, the court stated it was granting probation under the terms and conditions specified in the presentence report (with certain modifications not relevant to this appeal). As to each case, the court asked defendant if he had read and agreed to comply with the conditions of probation in the presentence report. Defendant stated he had read the conditions and agreed to comply with them.

As to the firearm case, the following colloquy occurred: "THE COURT: . . . [¶] . . . [¶] Mr. Delacy, have you read all of the conditions of probation in this report? [¶] THE DEFENDANT: Yes, ma'am, I have. [¶] THE COURT: Do you agree to comply with those conditions? [¶] THE DEFENDANT: Yes, I will.
Later in the hearing, the court asked about the ammunition case: "THE COURT: . . . [¶] And also, Mr. Delacy, I forgot to ask you if you had reviewed all of the conditions of probation in . . . the ammunition case. [¶] THE DEFENDANT: Yes, I have, ma'am. [¶] THE COURT: And do you agree to comply with all of those conditions? [¶] THE DEFENDANT: Yes, I will."

The court clerk issued a minute order in each case. Each minute order states defendant was placed on probation for three years under the terms and conditions in the probation officer's report. Attached to each minute order is the relevant list of terms and conditions from the report, including the court security fees, restitution fines and probation revocation restitution fines, all in the amounts recommended in the report. Each minute order also states: "Defendant advises the Court he understands and accepts the terms and conditions of probation."

2. Analysis

On appeal, defendant claims the court security fees, restitution fines and probation revocation fines must be stricken from the trial court's sentencing minute orders because the trial court did not orally impose those fines at the sentencing hearing. Defendant relies on People v. Zackery (2007) 147 Cal.App.4th 380 ( Zackery). In Zackery, the court applied the rule that "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." ( Id. at p. 385, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The court found the record was "replete with errors": the trial court clerk's minutes stated defendant had entered a plea of no contest to a charge on which he had never changed his not guilty plea or been convicted; the trial court erroneously imposed a sentence on that charge; and the minutes and abstract of judgment included several fines and fees the trial court had not orally imposed at sentencing, including a restitution fine (§ 1202.4) and a parole revocation restitution fine (§ 1202.45). ( Zackery, at pp. 384-387.) The court ordered these fines and fees stricken from the sentencing minutes. ( Id. at pp. 388-389, 393.) The court stated the practical reason for requiring imposition of a restitution fine in the presence of the defendant is that the trial court can decline to impose the fine "if it finds compelling and extraordinary reasons for not doing so and states the reasons on the record. (§ 1202.4, subd. (b).) When a restitution fine is imposed in the absence of the defendant, the defendant has no opportunity to address the propriety of imposing the fine or its amount." ( Zackery, at pp. 388-389.)

Section 1202.4, subdivision (b) requires imposition of a restitution fine of between $200 and $10,000 for a felony conviction, unless the court "finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." The probation revocation fine at issue here (and the parole revocation fine at issue in Zackery) must be imposed in the same amount as the restitution fine. (§§ 1202.44, 1202.45.)

Zackery is distinguishable, and there is no basis for striking the fees and fines challenged by defendant. First, the court security fee is mandatory; section 1465.8 provides it "shall" be imposed in every conviction. (§ 1465.8, subd. (a)(1).) When a trial court does not orally impose a mandatory fee or fine, the error is jurisdictional and is subject to later correction in the minutes or the abstract of judgment, or even on appeal. ( See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, 1157; People v. Barriga (1997) 54 Cal.App.4th 67, 69-70.) Accordingly, even if the trial court had not orally imposed the court security fee by incorporating the conditions in the presentence report, the trial court had authority to add this mandatory fee to the minute orders.

Second, although the restitution fine and the probation revocation restitution fine are not mandatory in every conviction (as the trial court can decline to impose them if it finds compelling and extraordinary reasons for not doing so and states the reasons on the record, see § 1202.4, subd. (f)), those fines were also properly imposed in this case. There was no conflict between the sentence orally pronounced by the trial court and the subsequent minute order. At most, the court's oral pronouncement of sentence was incomplete, and only in the sense that it incorporated by reference the terms and conditions in the presentence report (with which the parties were familiar), including the restitution fine and the probation revocation restitution fine. Moreover, defendant and his counsel had the opportunity to address the propriety of imposing the restitution fine (and the corresponding probation revocation restitution fine) at the sentencing hearing. Defendant's counsel had reviewed the presentence report and objected to other items in the report, but did not object to the fines and fees recommended in the report as terms of probation. And, defendant personally assured the court he had reviewed all the terms and conditions of probation and agreed to comply with them. The reasoning in Zackery is thus inapposite.

We also note, in the probation context, conditions may be included in an order of probation that were not orally communicated to the defendant personally by the court. "[P]robation is an act of clemency which imposes no penalties unless the conditions of probation are broken [citation]. The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions." ( People v. Thrash (1978) 80 Cal.App.3d 898, 901.) Accordingly, "`conditions [of probation] need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.' [Citation.]" ( In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155; see also In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) Here, defendant stated he had reviewed the terms and conditions of his probation and agreed to comply with them.

Assuming the trial court should have pronounced the amounts of the fines orally, any error is reviewed pursuant to the harmless error standard for noncapital sentencing errors. (See People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685.) Reversal is required only when the reviewing court, after careful examination of the entire case, is of the opinion there is a reasonable probability a result more favorable to the appealing party would have been reached absent the error. ( People v. Watson (1956) 46 Cal.2d 818, 836.) On this record, there is no evidence defendant's fines would have been different had the court pronounced them orally rather than by reference to the presentence report. As noted above, defendant was aware of the conditions of probation recommended in the presentence report, including the amounts of the fines, and he agreed to comply with them. Further, the amounts imposed by the court were the minimum amounts permitted by the governing statutes. (§ 1202.4, subd. (b)(1) [$200 is minimum restitution fine], 1202.44 [probation revocation fine is to be imposed in same amount as restitution fine].) Finally, the court noted defendant had been involved in "a mini crime spree" in the past few years for reasons the court did not understand; the court stated it was placing defendant on probation to give him the opportunity "one last time" to live "in a law-abiding way." The court warned defendant he would likely face prison if he got into trouble again. This record provides no evidence the court would have found extraordinary and compelling circumstances justifying waiving the minimum fines imposed on defendant.

III. DISPOSITION

The judgment is affirmed.

Banke, J., concurred.