Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F08978
SIMS, J.After a negotiated plea on several offenses, defendant Vong P. Lee appeals from a conviction under former Penal Code section 12091 (presumption that the possessor of a firearm with an altered serial number is the person who altered the serial number), on the ground that the statute was repealed, without a savings clause, before his conviction. The People concede the point, but the parties disagree on the remedy. We shall reverse the judgment and vacate the nolo contendere plea due to repeal of the statute making possession of an altered firearm a felony. Upon remand, the People may reinstate dismissed charges. Since the plea bargain was void ab initio, greater punishment is not precluded upon remand.
Undesignated statutory references are to the Penal Code. Although the abstract of judgment states a conviction under (former) section 12091, former section 12091 did not state an offense but rather an evidentiary presumption: “Possession of any pistol or revolver upon which the name of the maker, model, manufacturer’s number or other mark of identification has been changed, altered, removed, or obliterated, shall be presumptive evidence that the possessor has changed, altered, removed or obliterated the same.” (Stats. 1953, ch. 36, § 1, p. 660, repealed by Stats. 2008, ch. 699, § 21.) Unauthorized alteration of a firearm’s serial number is (and was at the time in question) a felony under section 12090. (Stats. 1976, ch. 1139, § 307, p. 5163.) Mere possession of an altered firearm is (and was) a misdemeanor under section 12094. (Stats. 2008, ch. 698, § 22; Stats. 2001, ch. 854, § 61.)
BACKGROUND
As reflected in the probation report, sheriff’s deputies on October 29, 2008, initiated a traffic stop of a vehicle driven by defendant, a validated street gang member, with a passenger on parole. The officers searched the vehicle and found a gun. On November 14, 2008, law enforcement officers executed a search warrant on defendant’s residence and found two guns, one with an altered serial number, and methamphetamine.
By an amended complaint against defendant (and a codefendant not party to this appeal), filed January 2, 2009 -- and deemed to be an information on March 30, 2009 -- defendant was charged as follows:
Count One - possession of a concealable firearm in the car (§ 12025, subd. (b)(3)) while an active participant in a criminal street gang as defined in section 186.22;
Count Two - participation in a criminal street gang (§ 186.22, subd. (a)) on the date of the traffic stop;
Count Three - (against the codefendant only);
Count Four - “On or about November 14, 2008, ... [defendant] did commit a felony namely: a violation of Section 12091 of the Penal Code of the State of California, in that said defendant did unlawfully possess a firearm with the manufacturer’s serial number removed” (underlining omitted);
Count Five - possession of a short-barreled shotgun found in defendant’s home (§ 12020, subd. (a));
Count Six - possession of methamphetamine while armed with two loaded, operable firearms (Health and Saf. Code, § 11370.1, subd. (a));
Count Seven - possession of methamphetamine for sale (Health and Saf. Code, § 11378); and
Count Eight - participation in a criminal street gang (§ 186.22, subd. (a)) on the date of the home search.
On March 30, 2009, pursuant to a plea bargain, defendant pled nolo contendere to violating (former) section 12091 (Count Four), as well as possession of a firearm by a gang member (Count One) and the drug offense in Count Six. The trial court found defendant guilty upon the factual basis (as to Count Four) that defendant possessed a gun with an altered serial number. There was nothing indicating defendant was the one who altered the serial number. The other charges were dismissed.
It apparently escaped the attention of everyone that (1) former section 12091 (fn. 1, ante) stated an evidentiary presumption rather than an offense, (2) former section 12091 was held unconstitutional in In re Christopher K. (2001) 91 Cal.App.4th 853, on the basis that the statute created a mandatory presumption relieving the prosecution of its burden to prove that the accused was the person who altered the firearm, and (3) the Legislature repealed section 12091 on September 30, 2008, effective January 1, 2009. (Stats. 2008, ch. 699, § 21; see Cal. Const., art. IV, § 8, subd. (c)(2) [in absence of urgency clause, legislation goes into effect on January 1 next following the enactment].)
On April 17, 2009, the trial court sentenced defendant, pursuant to the plea bargain, to a total of five years: The lower term of one year, four months, for the altered firearm; a consecutive term of eight months for possession of the concealed gun; concurrent two years for the methamphetamine, and a three-year street gang enhancement.
The trial court denied defendant’s motion to recall the sentence so he could withdraw his plea, but the court issued a certificate of probable cause for this appeal.
DISCUSSION
Defendant contends, and the People concede, the conviction for violating section 12091 must be reversed because section 12091 was repealed effective January 1, 2009, before defendant’s plea bargain and conviction. Thus, when the Legislature repeals a penal statute without a savings clause, all prosecutions not reduced to final judgment are barred. (People v. Rossi (1976) 18 Cal.3d 295, 298-304.) Even where a conviction results from a plea bargain, repeal of the statute without a savings clause terminates all prosecutions not yet final. (People v. Collins (1978) 21 Cal.3d 208, 212.) Thus, defendant’s felony conviction for possession of a firearm with an altered serial number cannot stand, due to repeal of the statute making possession of an altered firearm a felony based on a presumption that the possessor did the altering.
The dispute in this appeal is what happens next.
Defendant argues he is entitled to keep the rest of his plea bargain, and we should simply reverse the section 12091 conviction and otherwise affirm the judgment, leaving in place defendant’s sentence on the other charges.
The People argue we must remand for reinstatement of the information so that defendant is placed in the position he faced before the unlawful imposition of judgment -- including being subject to a greater punishment than he received under the plea bargain.
Defendant replies that if we remand for resentencing, we must order that the new sentence cannot exceed the current sentence.
We shall explain that, because section 12091’s repeal on January 1, 2009, occurred before defendant’s plea bargain on March 30, 2009, the plea bargain was void ab initio, the People are free to reinstate the dismissed charges, and punishment is not limited to the sentence imposed pursuant to the plea bargain.
Thus, in People v. Bean (1989) 213 Cal.App.3d 639, the defendant, pursuant to a plea bargain, pled guilty to attempted petty theft with a prior conviction as a lesser offense of a petty theft charge; the trial court tried the validity of the prior conviction enhancement; and a burglary count was dismissed. (Id. at p. 641.) The trial court found true a prior conviction and declined to strike the enhancement. (Ibid.) We reversed the judgment and remanded, holding that the defendant had pled guilty to a noncrime, since petty theft with a prior conviction was a crime the elements of which were not capable of being attempted. (Id. at pp. 642-644.) Thus, the judgment was void ab initio, and our duty was to nullify the plea and return the defendant to the position he had faced before any plea bargain or plea. (Id. at pp. 645-646.)
In Bean, supra, 213 Cal.App.3d 639, the defendant argued he must be allowed to withdraw from the plea but that his conviction should be modified to misdemeanor attempted petty theft. (Id. at p. 645.) We said no, because modification would deny the People their bargain. (Ibid.) “To allow defendant to withdraw the plea would imply he had the ability to decline to withdraw the plea, which he does not. This plea was defective ab initio. It should never have been entered. Our duty is to nullify it entirely.” (Ibid.)
We also held the People could seek greater punishment on remand. “In People v. Henderson (1963) 60 Cal.2d 482 the court held defendant was erroneously sentenced to death because the court’s instructions deprived him of a jury trial on the central question in the case. [Citation.] The court also held the People could not seek the death penalty on retrial because: ‘A defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.’ [Citation.] However, in Henderson ‘the sentence imposed after the first trial was a lawful one, ... [¶] The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ [Citation.]
“In People v. Collins[, supra, ] 21 Cal.3d 208, Collins pleaded guilty to oral copulation in exchange for the dismissal of other charges. [Citation.] While Collins was in a state hospital for mentally disordered sex offenders the Legislature redefined oral copulation to decriminalize consensual oral copulation between nonprisoners. The trial court sentenced Collins despite the legislative change. [Citation.] Because the act to which Collins pleaded guilty was no longer a crime, the court reversed the judgment. [Citation.] Collins upheld the benefits the parties to the bargain sought by permitting the People to reinstate all of the charges against Collins, and limiting punishment on retrial to Collins’s original sentence. [Citation.] However, the Collins court noted: ‘This is not a case in which the defendant has repudiated the bargain by attacking his guilty plea; he attacks only the judgment, and does so on the basis of external events--the repeal and reenactment of section 288a--that have rendered the judgment insupportable.’ [Citation.]
“Unlike Henderson and Collins the judgment here [Bean] was void from the beginning. There is no power in courts of this state to enact penal laws; common law crimes do not exist here. Any benefit the parties herein thought they were getting was illusory because the bargain was illegal....
“Having successfully overturned his bargain, defendant will be placed in the position he faced prior to any plea bargain or plea. Assuming the People wish to pursue the matter they are free to reinstate charges of burglary and petty theft with a prior conviction.” (Bean, supra, 213 Cal.App.3d 639, 645-646.)
Defendant here argues his case is governed by Collins, not Bean, because he is not repudiating his plea bargain or attacking his plea but is simply attacking the judgment based on an external event -- repeal of a statute.
However, unlike Collins, where the statute was repealed after the plea bargain was entered, here the statute was repealed before the plea bargain was entered. Thus, the plea bargain was void ab initio, and Bean governs. Both sides will be placed in the position they were in before the plea bargain.
DISPOSITION
The judgment is reversed, the nolo contendere plea is vacated, and the cause is remanded for further proceedings consistent with the views herein expressed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.