San Diego Police Officers Assn. v. Gwinn
Filed 7/14/08 San Diego Police Officers Assn. v. Gwinn CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO POLICE OFFICERS ASSOCIATION, Plaintiff and Respondent, v. CASEY GWINN, as City Attorney, etc., et al., Defendant and Appellant. | D051945 (Super. Ct. No. 727415) |
APPEAL from an order of the Superior Court of San Diego County, Rafael A. Arreola, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed and remanded with directions.
Penal Code section 12021, subdivision (c)(1)[1]prohibits firearm possession by persons convicted of certain enumerated offenses, including misdemeanor battery ( 242). Section 12021, subdivision (c)(2) allows peace officers convicted of some of the enumerated offensesbut not misdemeanor batteryto petition for relief from the prohibition. In 1999 the San Diego Police Officers Association (SDPOA) and others filed a complaint seeking a declaration that the firearm possession prohibition denied equal protection to peace officers convicted of misdemeanor battery. The San Diego County Superior Court determined there was a denial of equal protection and "issued an injunction (1) barring the San Diego City Attorney and San Diego County District Attorney from 'prosecuting any peace officer . . . under . . . section 12021(c)(1) where the underlying conviction is for . . . section 242, simple battery' and (2) barring the San Diego Police Department and City of San Diego from 'enforcing . . . section 12021(c)(1) against any peace officer employed by the San Diego Police Department based on a legal disability imposed by that statute as a result of a conviction for simple battery' or terminating the employment of the officer 'based on a legal disability imposed by that statute as a result of a conviction for simple battery . . . .' " (People v. Conley (2004) 116 Cal.App.4th 566, 570 (Conley).)[2]
In Conley, this court concluded "the distinctions drawn by section 12021, subdivision (c)(2) do not offend equal protection." (Conley, supra, 116 Cal.App.4th at p. 575.) In 2007 defendants the City of San Diego, the San Diego Chief of Police, the San Diego City Attorney (collectively, San Diego), and the District Attorney of San Diego County moved to dissolve the injunction in the instant case, citing Conley. The superior court denied the motion. San Diego appeals. SDPOA has declined to respond. For the reasons set forth above, we reverse the order and remand the case to the trial court for the entry of a new order dissolving the injunction.
DISPOSITION
The order is reversed. The case is remanded to the trial court for the entry of a new order dissolving the injunction. Each party to bear own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] The injunction also states sections 1203.4a and 1203.4"expungement" statutesdeny equal protection because the former section allows misdemeanants who did not receive probation to apply for postsentence relief from the firearm possession prohibition, while the latter section provides no such opportunity for those who received and completed probation. Section 1203.4 states, "[d]ismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021." ( 1203.4, subd. (a).) The absence of such a statement in section 1203.4a does not vitiate the applicability of the section 12021 firearm possession prohibition. (See People v. Bell (1989) 49 Cal.3d 502, 542-546 [prohibition in former version of 12021 survived Welf. & Inst. Code 1772 expungement despite lack of express survival provision in latter section].)
