Opinion
C083445
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEWIS STANLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF131242)
In a failed effort to purchase two guns, defendant Michael Lewis Stanley went to a gun store and filled out a state mandated form. On the form, he falsely indicated he had never been convicted of a felony. A jury subsequently found him guilty of attempted unlawful possession of a firearm by a felon. (Pen. Code, § 664/29800, subd. (a)(1).) On appeal, he contends he was improperly charged under the general attempt statute. We agree and will reverse.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
At a gun store, defendant filled out a "Firearms Transaction Record," which the state requires prior to purchasing a gun. On the question asking if he had ever been convicted of a felony, defendant checked the "no" box. Though on the question asking if he had a misdemeanor conviction for domestic violence, he checked "yes."
Defendant had been convicted of a felony in 2009. Before pleading guilty to that felony, he had initialized an advisement that he would be prohibited from owning or possessing firearms for life.
A jury found him guilty of attempted unlawful possession of a firearm by a felon. (§ 664/29800, subd. (a)(1).) The trial court ordered three years' probation and ordered defendant to serve 60 days in jail.
II. DISCUSSION
On appeal, defendant challenges his conviction contending he was improperly charged under the general attempt statute. We agree.
The People argue the challenge is forfeited for failure to demurrer to the complaint below. As explained below, because the sentence was unauthorized the claim is reviewable on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354 ["a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case . . . . [¶] . . . Claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"].) --------
Defendant's current conviction rests on section 664, the general attempt statute, which punishes attempts to commit any crime—but only " 'where no provision is made by law for the punishment of those attempts . . . .' " (See People v. Duran (2004) 124 Cal.App.4th 666, 674 (Duran).) Here, a statutory provision punishes defendant's attempt. Section 28250 punishes the furnishing of false information on an application to purchase a firearm. (See Duran, supra, at p. 672.)
Because the Legislature has provided a specific punishment for defendant's conduct, section 664 is inapplicable in defendant's case. (See People v. Alberts (1995) 32 Cal.App.4th 1424, 1427 [statute proscribing attempted arson precluded a conviction for attempted arson of an inhabited structure under the general attempt statute].)
The Second Appellate District reached the same result under near identical circumstances in Duran, supra, 124 Cal.App.4th at page 669. Duran had been charged with attempted possession of a firearm by a felon after answering "no" to a question about prior felonies on the application forms. (Ibid.) Affirming the dismissal of the information, the appellate court explained section 12076 (which established a misdemeanor for providing false information on forms required to purchase a gun and the predecessor to section 28250) covered the same conduct as the more general statute, section 12021 (which established a felony for, among other things, purchasing a gun if you have a prior felony conviction and the predecessor to section 29800). (Duran, supra, at p. 673.) "By enacting 12076, the Legislature made an implied determination that a felon who submits a false application in an attempt to purchase a firearm is less of a risk to public safety than a felon who attempts to possess a firearm in a nonregulated manner." (Ibid.) It continued: "The general attempt statute, section 664, only has application 'where no provision is made by law for the punishment of those attempts . . . .' Here, there is provision for the punishment of an attempt when made by a false application." (Id. at p. 674.)
The People attempt to distinguish Duran, noting that when it was decided section 12021 did not include the word "purchases." But the fact that section 29800 now punishes the purchase of a gun (in addition to other conduct) does not change the fact that section 28250 more specifically punishes defendant's attempt—providing false information on a state-mandated form in an effort to purchase a gun.
The People further maintain that sections 29800 and 28250 punish different conduct, arguing that an attempt to violate section 29800 does not require a defendant to provide false information. But that observation is not persuasive. That section 29800 covers a broader swath of conduct than section 28250 illustrates that section 29800 is the more general statute to which an exception applies (section 28250 punishes less risky attempts to procure firearms through licensed dealers). (See Duran, supra, 124 Cal.App.4th at p. 673; see also People v. Jenkins (1980) 28 Cal.3d 494, 501 [" ' "where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute" ' "].)
In sum, because defendant was improperly charged under the general attempt statute, we will reverse his conviction for attempted unlawful possession of a firearm by a felon.
III. DISPOSITION
The judgment is reversed.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
HULL, J.