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FIRM ARTICLES

August 22, 2006

How Are Foreign Felony Convictions Applied in Domestic Courts?

By: Collin McKibben, Attorney at Law & Helen Kim

Federal Interpretation

In 1825, the United States Supreme Court stated that courts of no country shall execute the penal laws of another.   Today, this principle has been extended to penal judgments as well.  However, while the principle seems to mean that U.S. courts shall not directly enforce foreign penal laws or judgments, U.S. courts may choose to rely on foreign penal laws or judgments where applicable.   

In Small v. United States, 544 U.S. 385 (2005), the Supreme Court evaluated the language of 18 U.S.C.S. 922(d)(1) which states: It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.  Specifically, the Court evaluated whether the statutory reference convicted in any court included a conviction entered in a foreign court.  The Court looked to the commonsense notion that Congress generally legislates with domestic concerns in mind,  Id., at 388, and the Supreme Court adopted a presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application.  Id.  Although Small did not involve an extraterritorial application of U.S. law, the Court used a similar assumption to evaluate the scope of the statutory reference, convicted in any court.  The Court noted that foreign penal convictions differed from domestic penal convictions in many ways, thereby creating an inconsistency in the American notion of fairness.  Id., at 389.   Hence, the Court held that the phrase convicted in any court referred only to domestic courts and not to foreign courts.  Id., at 394. 

California Interpretation

Under California Penal Code Section 12021(a)(1), Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country who owns, purchases, receives or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.  There are exceptions to the rule: a convicted felon who is currently a peace officer may be permitted to carry firearms, or exigent circumstances may allow a convicted felon to temporarily possess firearms.  The question arises when an individual has a conviction entered in a foreign court.  In some instances, an offense would be considered a felony in a foreign jurisdiction, while the same offense would be considered a misdemeanor in California.  Thus, an individual who was convicted of a felony in a foreign jurisdiction would be unable to carry firearms in California, even though the same offense is considered a misdemeanor in California. 

For instance, in People v. Shear, 71 Cal.App.4th 278 (1999), the defendant challenged the trial courts conviction of violating CPC 12021 (a)(1) because he was previously convicted of a felony in Arizona but the same act was not punishable as a felony in California.  The court in Shear  determined that a conviction of a felony in a foreign jurisdiction was sufficient to satisfy the felony classification of CPC 12021 (a)(1) and thus the statute applied to any person convicted of a felony under the laws of the United States, of the state of California, or any other state, government, or country.  Shear, 71 Cal.App.4th at 282. 

The defendant also argued that his right to possess firearms was restored in Arizona and under the Full Faith and Credit Clause of the U.S. Const. Art. IV Section 1 California should honor Arizonas law and he should be able to carry firearms in California.  Shear, 71 Cal.App.4th 278.  In Sun Oil Co. v. Wortman, 486, U.S. 717, 722 (1988), the court stated that the Full Faith and Credit Clause did not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.  The court in Thurman v. Thomas, 27 Cal. 3d 285, 296 (1980), also stated that the classification of a foreign conviction was controlled by foreign law.  Similarly, the court in Shear determined that the Full Faith and Credit Clause did not preclude California from carrying out its public policy of prohibiting convicted felons carry firearms in its state because the defendant was able to possess firearms in another jurisdiction. 

Prior convictions from foreign jurisdictions can also be used to enhance a defendants sentence if the prior conviction contains all of the elements of any serious felony under California law.  Fisher v. Jones, U.S. App. LEXIS 9727 (9th Cir. 1996).  Even a felony conviction for military offense satisfied the felony classification in CPC 12021 (a)(1).   United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993). 

In Shear, Thurman, and Fisher, these cases all involved domestic laws.  Hence, although the cases involved conflicting interstate penal laws and judgments, the courts were not concerned with discrepancies that arose to varying notions of fairness.  However, in Small, the Supreme Court recognized that the discrepancies between domestic laws and foreign laws were significant enough so that it would be fundamentally unfair to apply foreign penal laws and judgments in U.S. courts. 

Conclusion

Congress has stated that any provision in 18 U.S.C. 921 regarding firearms shall not occupy the field in which such provision operates to the exclusion of law of any State on the same subject matter, unless there is a direct and positive conflict between such provisions and the law of the State so that the two cannot be reconciled or consistently stand together.  Furthermore, the regulation of firearms by felons is within the historic police powers of the state and not pre-empted by federal law.  Helmer v. Miller, 19 Cal. App. 4th 1565 (1993).  Thus California courts have the authority to clarify the statutory language of convicted in any court in CPC 12021(a)(1) and determine whether it encompasses international felony convictions.  While California courts have accepted interstate felony convictions, they may rule differently on international felony convictions in accordance with public policy and the fundamental notion of fairness as perceived by the American people.   

Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 Am. J. Comp. L. 559, 577 (2005).

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