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The state prison requirement for Unlawful Possession of a Destructive Device (Cal. Pen. Code § 18710) violates equal protection where other destructive device offenses are punishable by county jail incarceration under Cal. Pen. Code § 1170(h)

California

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USA

Court of Appeal Reforms Cal. Pen. Code § 18710 to Make its Violation Punishable by a County Jail Sentence In People v. Fisher, A161128 (Cal. Ct. App. Nov. 16, 2021), a criminal defendant appealed his state prison sentence for convictions of destructive device offenses including two felony counts of simple possession of a destructive device (“simple possession”) under Cal. Pen. Code § 18710. Simple possession was a wobbler offense that was not county jail eligible under Cal. Pen. Code § 1170(h). Due to this wobbler offense, the district court was required to order that the defendant’s entire sentence be served in state prison. The defendant alleged that the disparate punishment of offenders convicted of simple possession violated equal protection. Disparate Treatment of People Charged with the Various Destructive Device Offenses Violates Equal Protection The California Court of Appeal for the First District found that people charged with the various destructive device offenses are similarly situated and that there was no realistically conceivable legislative purpose for requiring a state prison sentence for those convicted of simple possession of a destructive device while affording the benefits of a county jail sentence to those convicted of the other destructive device offenses. The Court noted that simple possession was a lesser included offense of two of the Cal. Pen. Code § 1170(h) eligible offenses of which the defendant was convicted. Additionally, simple possession is a lesser included offense of the offense of exploding or igniting a destructive device or explosive with the intent to injure, intimidate, or terrify a person or to damage another’s property which is punishable by a county jail sentence. Thus, the Court found it was inconsistent to require a state prison sentence for the less serious simple possession offense. The Court held that the disparate application of Cal. Pen. Code § 1170(h) to people convicted of simple possession violated the equal protection principles of the United States and California Constitutions. Disposition The Court held that the disparate application of Cal. Pen. Code § 1170(h) to the defendant’s conviction of simple possession violated equal protection. The Court reformed Cal. Pen. Code § 18710 (“simple possession”) to make its violation punishable under the sentencing provisions of Cal. Pen. Code § 1170(h). The case was remanded to the trial court with directions to terminate the defendant’s postrelease supervision and to modify the judgment consistent with the Court’s opinion.

April 14, 2022
People v. Fisher, A161128 (Cal. Ct. App. Nov. 16, 2021)
California Courts