Equal Protection, Similarly Situated, Disparate Effect

In 2019, Defendant Justin Chapman Fisher was stopped in Napa County for reckless driving and his car was searched. 

Officers found what appeared to be explosive devices in the trunk.  Fisher told police they were fireworks.  The explosives team arrived and identified three pipe bombs; a capped white PVC pipe with a fuse, a capped black plastic pipe with a fuse, and a red cardboard cylinder with a fuse.  The black pipe contained fifteen grams of flash powder.  Both it and the PVC device would explode if their fuses were lit, possibly causing serious injury to anyone holding them; the cardboard tube would burn and dissipate, probably inflicting a serious burn.

Fisher was arrested and released on bail.  The friend who facilitated his bail release found chemicals in a garage Fisher used and called the police, who came and found chemical powders and an AR-15 rifle with no serial number, capable of accepting a magazine.

The Napa County District Attorney’s Office charged Fisher in an information with possession of a destructive device (three felony counts) (Penal Code § 18710); felony possession of a destructive device on a highway (Penal Code § 18715(a)(1)); felony possession of materials with the intent to make a destructive device (Penal Code § 18720); and felony transportation of a destructive device (Penal Code § 18730).  Fisher was charged in a separate information with possession of a machine gun (Penal Code § 32625(a)) with a special allegation that he committed the crime while on bail.

Fisher was also charged with misdemeanor possession of methamphetamine and heroin, as well as being the unregistered owner of a motor vehicle.

Fisher waived a jury trial.  The judge, Monique Langhorne, found him guilty of five destructive device felonies: possession with intent to make a destructive device, reckless possession of a destructive device, sale or transportation of a destructive device, two felony counts of simple possession of a destructive device, and possession / transportation of a machine gun. 

He was sentenced to a total term of four years in state prison, including two eight-month consecutive terms on the section 18710 simple possession convictions. 

Three of the offenses were subject to prison sentences served in county jail under Penal Code § 1170(h) (AB 109).  However, Fisher was also convicted of two felony counts of simple possession of a destructive device, a wobbler offense that is not county jail eligible under § 1170(h).  As a result, Fisher was required to serve the sentence in state prison.

Fisher appealed his sentence in state prison to the First Appellate District as unconstitutional because the statute mandating the disparate punishment of similarly situated felons violated constitutional equal protection principals. 

The First Appellate District agreed with Fisher.  It concluded that persons charged with the various destructive device offenses are similarly situated and that there is no “realistically conceivable legislative purpose” (People v. Noyan (2014) 232 Cal. App. 4th 657, at 668) to require a state prison sentence for those convicted of possession while affording the benefits of county jail incarcerations for the 1170(h) eligible destructive device offenses.  The court therefore reached the same conclusion as in Noyan, supra: “the disparate application of section 1170(h)” to the conduct punished by Penal Code § 18710 in contrast to the 1170(h) eligible destructive device offenses “violates the equal protection principles codified in the Fourteenth Amendment of the United States Constitution and in article I, section 7 of the California Constitution.”  Noyan, at 671.

The next step, however, is for the court to determine the proper remedy for such an equal protection violation.  The appellate court explained that its primary concern it to ascertain which alternative the Legislature would prefer: prison for all such offenses or county jail for all such offenses.  An express purpose in enacting the Realignment Legislation (AB 109) was to “[realign] low-level felony offenders . . . to locally run community-based corrections programs” to decrease recidivism and improve public safety.”  Noyan, supra, at 671-672. 

Having reviewed the legislative history of both Senate Bill 1080 and the Realignment Legislation, the First Appellate District court agreed with Noyan that the proper remedy is to reform the provision, here in Penal Code § 18710, to further this legislative purpose by making its violation punishable under the sentencing provisions of Penal Code § 1170(h), which is county jail.

The appellate court then remanded the case to the Contra Costa trial court judge with directions to terminate Fisher’s post-release supervision and to modify the judgment so that all time for Fisher is to be served in county jail.

The citation for the First Appellate District Court ruling discussed above is People v. Justin Chapman Fisher (1st App. Dist., 2021) 71 Cal. App. 5th 745, 286 Cal. Rptr. 3d 613.

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