Equal Protection: Possession of a destructive device ~ California Penal Code section 12312
PENAL CODE SECTION 12312 (Possession of a destructive device) VIOLATES THE EQUAL PROTECTION CLAUSE OF THE U.S. AND CALIFORNIA CONSTITUTIONS
Similarly situated individuals, who are punished differently for violations of the law without a compelling state interest to justify that different punishment, are denied the equal protection of the laws. (United States Constitution Amend IV, California Constitution art. I, §§ 11, 21; art. IV, § 16) Mr. Defendant is charged with possession of the ingredients to make a destructive device, a crime punishable by imprisonment for two, three or four years (Penal Code section 12312), of which no portion of the sentence may be suspended, nor may probation be granted (Penal Code section 12311). Contrast this with the actual possession of a destructive device, which is punishable by imprisonment in the county jail for up to one year or imprisonment in the state prison for sixteen months, two, or three years (Penal Code section 12303), and it becomes clear that the punishment scheme for section 12312 violates the equal protection clauses of the United States and California Constitutions.
A. The classifications herein – – “those who possess the ingredients with the intent to make a destructive device” and “those who are in possession of a destructive device” – – are “sufficiently similar”
“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. It is often stated that the first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. The use of the term ‘similarly situated’ in this context refers only to the fact that the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.”
( People v. Nguyen (1997) 54 Cal. App. 4th 705, 714, internal quotation marks and citations omitted.)
In Nguyen, the prerequisite showing was met. The court in that case determined that persons with two prior strikes without a prior theft conviction were similarly situated to those who had suffered two prior strikes and a prior theft conviction. 54 Cal.App.4th at 714-15.
Likewise, in People v. Olivas, (1976) 17 Cal. 3d 236, the California Supreme Court determined that minors tried in Superior Court were similarly situated to minors tried in Juvenile Court with respect to the available punishment for each group. This principle was affirmed in In re Eric J., (1979) 25 Cal.3d522, 530, where the court determined that minors, although similarly situated to each other, were not similarly situated to adults with respect to penal purposes.
Here, the groups are sufficiently similar to one another. They both involve individuals charged with possession crimes under the chapter of the Penal Code entitled “Destructive Devices.” (Article 4, Chapter 2.5, Penal Code section 12301 et seq.) The only difference between the two groups is that one – – the more heavily penalized group – – possesses only a portion of the destructive device with the intent to make the destructive device, while the second – – the less penalized group – – possesses the completed device. Accordingly, having the ingredients to make a destructive device is penalized greater than possession of a destructive device.
B. A challenge to a statute affecting the liberty interest of a class of persons is subject to review via “strict Constitutional scrutiny”
“The next step in analyzing an equal protection challenge is a determination of the appropriate standard of review. In this case, the California Supreme Court has dictated that the appropriate standard of review for a distinction of this kind is strict scrutiny. This standard was established by a unanimous California Supreme Court in People v. Olivas (1976) 17 Cal. 3d 236 [131 Cal. Rptr. 55, 551 P.2d 375]. It is well accepted that strict scrutiny review is applied only where the classification is “suspect” or affects a “fundamental interest.” (Olivas, at p. 243.) The defendant in Olivas did not claim that the challenged classification itself was “suspect,” but only that it involved a fundamental interest. (Olivas, at p. 244.) The California Supreme Court analyzed the issue solely from a “fundamental interest” standpoint. “[W]e must initially define just what ‘interest’ is involved in the present case. Once that determination is made we must next decide whether that ‘interest’ is ‘fundamental’ for purposes of equal protection analysis. We must finally apply the appropriate standard of review to the legislative classification to see if it passes constitutional muster.” (Olivas, at p. 244.)”
( People v. Nguyen (1997) 54 Cal. App. 4th 705, 715.)
In People v. Olivas (1976) 17 Cal. 3d 236, 251 [131 Cal. Rptr. 55, 551 P.2d 375], the California Supreme Court held that liberty is a fundamental interest and that classifications dealing with it must satisfy the strict scrutiny test. “We conclude that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (17 Cal.3d at 251.) Stated simply, when one can go to jail for a longer period of time because a statute denies the equal protection of the laws, that statute affects a “liberty interest,” which is in turn a “fundamental interest.”
In Olivas, the court applied that test and found it was a denial of equal protection to charge, try and convict a juvenile offender in adult court and then, pursuant to Welfare and Institutions Code section 1731.5, commit that person to the Youth Authority for a longer term than for an adult convicted of the same offense but sentenced to prison. “Olivas [(1976) 17 Cal. 3d 236] struck down a classification which subjected misdemeanor offenders between the ages of 18 and 21 to significantly “extended incarceration” beyond that applicable to misdemeanor offenders over the age of 21 who had committed the same offense.” (Nguyen, 54 Cal. App. 4th at 715.)
C. Once it is determined that the “strict scrutiny” standard must be applied, it is incumbent upon the State to show a compelling governmental interest in the discrimination; no such interest can be shown herein.
Here, the government must state which compelling state interest is served by the punishment scheme enacted by Chapter 2.5 of Article 4 of the Penal Code. The government must explain why possessing a destructive device can be a misdemeanor but possessing the ingredients to make that device is a felony punishable by a mandatory term in the state prison. No such compelling state interest exists, and thus the statutory scheme fails.
“[O]nce it is determined that the classification scheme affects a fundamental interest or right the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose. [Citations.] Having determined that personal liberty is an interest which is entitled to the same protection as other fundamental interests, we confront the central issue before us: can the challenged sentencing scheme withstand application of the strict scrutiny standard?” (People v. Olivas, supra, 17 Cal. 3d at p. 251).
In People v. Nguyen, supra, ((1997) 54 Cal. App. 4th 705) the court struck down an equal protection challenge to the three strikes law as applied to the crime of petty theft with priors. “[A] petty thief who has two prior serious felony convictions, including or in addition to a prior theft-related conviction which resulted in confinement, is subject to punishment under [the three strikes law], but a petty thief who has two prior serious felony convictions but no prior theft-related convictions is subject only to misdemeanor punishment.” ( People v. Nguyen (1997) 54 Cal. App. 4th 705, 714.) The court’s logic was simple. Persons with significant criminal records including theft related offenses are not similarly situated to those with serious criminal records but without such theft records. Indeed, the court states that: “Individuals who commit petty theft and have a history of committing theft-related offenses are significantly distinct from those individuals who have no such history.” (54 Cal. App. 4th at 717). The court reasoned:
“The commission of theft by a thrice convicted individual with not only a history of serious felony misconduct but also of committing theft and being confined therefor poses a much more serious danger to the community than the commission of theft by an twice convicted individual with a history of serious felony misconduct who has never before committed theft. As he or she has suffered more prior convictions, the thrice convicted individual has had more opportunities to reform his or her conduct. Notwithstanding these additional opportunities to conform his or her conduct to society’s rules, the thrice convicted individual has chosen a life of crime. The previous confinement of this individual for his or her prior theft-related offense also failed to prevent this individual from again committing a theft-related offense. As the thrice convicted individual has shown himself or herself to be resistant to confinement and committed to a life of crime, this individual poses a substantially greater danger to the community than the twice convicted individual who has never before committed a theft-related offense. The state has a compelling interest in eliminating this danger to society which necessitates harsher punishment for such individuals.”
Here, it is implausible that the Legislature believed persons who possessed ingredients to make a destructive device with the intent to make that device could be punished less harshly than those who actually followed through and completed the destructive device. There is no logic to the distinction.