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AGO 1969 No. 5 - February 26, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


FIREARMS - OWNERSHIP OR POSSESSION OF PISTOLS - PROBATION - RESTORATION OF CIVIL RIGHTS.

(1) The provisions of RCW 9.41.040, which prohibit certain convicted persons from owning or carrying a pistol, do not apply to an individual who has obtained a dismissal of criminal proceedings under RCW 9.95.240.

(2) The prohibitions contained in RCW 9.41.040 continue to apply to a convicted person who has obtained a restoration of his civil rights upon parole discharge under RCW 9.96.050.

                                                              - - - - - - - - - - - - -

                                                                February 26, 1969

Honorable William R. Conte
Director, Department of Institutions
P.O. Box 768
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1969 No. 5

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Do the provisions of RCW 9.41.040, prohibiting certain convicted persons from owning or carrying pistols, apply to a person who has obtained a dismissal of criminal proceedings under RCW 9.95.240?

            (2) Do the provisions of RCW 9.41.040 continue to apply to a convicted person whose civil rights have been restored by certificate of final discharge issued by the board of prison terms and paroles, pursuant to RCW 9.96.050?

            We answer question (1) in the negative, and question (2) in the affirmative.  Our reasoning is set forth in the following analysis.

                                                                     ANALYSIS

            RCW 9.41.040, which prohibits certain persons from owning or possessing a pistol, reads as follows:

            "No person who has been convicted in this  [[Orig. Op. Page 2]] state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control.  Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years."

            The term "crime of violence" is expressly defined by RCW 9.41.010 as follows:

            "'Crime of violence' as used in RCW 9.41.010 through 9.41.160 means any of the following crimes or an attempt to commit any of the same: Murder, manslaughter, rape, mayhem, first degree assault, robbery, burglary and kidnaping."

            Question (1):

            Your first question involves a person who has pleaded guilty to, or been found guilty of, one of the "crimes of violence" specifically mentioned in RCW 9.41.040,supra.  This individual, instead of being sentenced to a term of confinement in a penal institution, is thereafter granted probation in accordance with RCW 9.95.200, which reads, in material part, as follows:

            "After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. . . ."

            Upon satisfactory fulfillment of the conditions of his probation, the person in question then receives a dismissal of the information or indictment against him in accordance with RCW 9.95.240, which provides that:

            "Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the  [[Orig. Op. Page 3]] termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. . . ."  (Emphasis supplied.)

            Under these circumstances, then, the underlined portion of RCW 9.95.240,supra, becomes of key importance to the resolution of the first question you present.  This provision of the statute has been considered in two previous attorney general opinions,1/ copies of which are enclosed.

            In both of these opinions, it was stated that:

            "The language of this statute is quite clear.  Once the criminal proceedings have been dismissed pursuant thereto, the defendant is thereafter 'released from all penalties and disabilities resulting from the offense or  [[Orig. Op. Page 4]] crime of which he has been convicted.' . . ."

            Since these opinions were written, the Washington supreme court, in considering the question of whether a person would be disqualified from holding public office under RCW 9.92.1202/ when a dismissal of the information against him had been entered in accordance with RCW 9.95.240, has, in a concurring opinion rendered by four of the justices, lent further support to the conclusions of those opinions.  Matsen v. Kaiser, 74 W.D.2d 232, [[74 Wn.2d 231]], 443 P.2d 843 (1968).  At page 238 of that opinion, Judge Hamilton, in speaking of the provisions of RCW 9.95.240, said:

            "This statute is a legislative expression of public policy in the field of criminal law and rehabilitation.  It undertakes, in unambiguous terms, to restore a deserving offender to his preconviction status as a full-fledged citizen.  Theonly exception to the statutory release ofall penalties and disabilities attendant upon a conviction is found in the proviso, which is not applicable in the instant case.3/

             The proviso contained in RCW 9.95.240 is, likewise, inapplicable  [[Orig. Op. Page 5]] to the question which we are here considering.4/   See,People v. Taylor, 178 Cal. App.2d 472, 3 Cal. Rep. 186 (1960) [[3 Cal. Rptr. 186]], which was noted and discussed in AGO 65-66 No. 120,supra, and which is squarely in point as to the present question.  In that case, the court had before it a woman who had successfully completed her probation under a California statute which was substantially identical to our RCW 9.95.240 (including the noted proviso).  She had then obtained a dismissal of the felony charge as provided for therein.  Subsequently, she was charged with a violation of a statute (like our RCW 9.41.040) making it a crime for ". . . any person . . . who has been convicted of a felony . . ." to have any weapon in his possession.  Affirming an order setting aside the information, and expressly rejecting the argument that legislative intent was that a probationer should forever remain among the class of persons not entitled to possess weapons, the court said:

            ". . . The clear intent of the probation sections of the Penal Code . . . is to effect the complete rehabilitation of those convicted of crime.  The record of one released under this section is wiped clean, subject only to reinstatement when . . . the person commits another and subsequent crime, . . . If one . . . has fulfilled the requirements of probation and secured a release . . . it is a fair inference  [[Orig. Op. Page 6]] that such a person should also be released from that class of convicted felons . . . and should be restored to the right to possess a revolver or other handgun . . . just as any other citizen. . . ."5/

             Based upon the foregoing, we answer your first question in the negative; i.e., the provisions of RCW 9.41.040, which prohibit certain convicted persons from owning or carrying a pistol, do not apply to an individual who has obtained a dismissal of the criminal proceedings under RCW 9.95.240.

            Question (2):

            Your second question also involves a person who has pleaded guilty to, or been found guilty of, one of the "crimes of violence" mentioned in RCW 9.41.040,supra.  Here, however, as opposed to the circumstances of the first question, the person convicted has been sentenced to a term of confinement in an institution in accordance with RCW 9.95.010.

            Thereafter, the convicted person has been placed on parole from the penitentiary or reformatory by an order of the board of prison terms and paroles, in accordance with the provisions of RCW 9.95.110, which reads, in material part, as follows:

            "The board of prison terms and paroles may permit a convicted person to leave the buildings and enclosures of the penitentiary or the reformatory on parole, after such convicted person has served the period of confinement fixed for him by the board, less time credits for good behavior and diligence in work: . . ."

            Whenever the board of prison terms and paroles determines that the parolee is eligible for final discharge, it is empowered to issue a certificate of discharge by the provisions of RCW 9.96.050, which provides that:

             [[Orig. Op. Page 7]]

            "When a prisoner on parole has performed the obligations of his release for such time as shall satisfy the board of prison terms and paroles that his final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the prisoner: . . .  Such discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certification of discharge shall so state."  (Emphasis supplied.)

            The first point to be noted is that the underscored portion of this statute reads somewhat differently than does RCW 9.95.240, supra, which we considered in connection with your first question.  That statutes states that the dismissal of criminal proceedings will release the person from "all penalties and disabilities resulting from the offense."  However, by way of contrast, a parole discharge under RCW 9.96.050, supra, does not obliterate the offense.  See,State v. Cullen, 14 Wn.2d 105, 127 P.2d 257 (1942).  Instead, it merely releases the parolee from custodial status and restores his civil rights to him.

            Accordingly, while it can be said of a person who has obtained dismissal of the criminal charges against him under RCW 9.95.240 that he no longer stands as a person "who has been convicted," within the meaning of RCW 9.41.040, this cannot be said of a convicted and sentenced person who has merely received a parole discharge and restoration of civil rights under RCW 9.96.050.

            The issue presented by your second question, then, becomes whether the legislature, by providing for the restoration of a convicted person's civil rights upon his receipt of a parole discharge, intended that the prohibition of RCW 9.41.040 should no longer apply to such person.  We do not believe that this is what was intended.

            This is not to say that the ordinary citizen's right to own or possess a pistol is not a "civil right" in the general sense of that term.  A "civil right" has been defined as one which appertains to a person by virtue of his citizenship in a state or community and is accorded to every member of a distinct community or nation.  14 C.J.S., Civil Rights, § 1, page 1159.

             [[Orig. Op. Page 8]]

            That the right which we are here considering is of this nature seems implicit from the following provision of Article I, § 24 of our state constitution, which reads, in material part, as follows:

            "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, . . ."

            However, the prohibition contained in RCW 9.41.040, supra, against ownership or possession of a pistol by a person who has been convicted of a crime of violence, has been held to be a constitutionally permissible qualification of this right.  See,State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939); State v. Krantz, 24 Wn.2d 350, 164 P.2d 453 (1945); and In re Pettus v. Cranor, 41 Wn.2d 567, 250 P.2d 542 (1952); cf.,United States v. Miller, 307 U.S. 174, 83 L.Ed. 1206, 59 S.Ct. 816 (1939).  The basis for this conclusion, as stated by the court in the Krantz case, is the long-standing recognition by courts throughout the country that ". . . this constitutional guarantee is subject to reasonable regulation by the state under its police power."

            Thus, a conclusion that the prohibition contained in RCW 9.41.040,supra, continues to apply to a person who has been convicted of a crime of violence even after he has obtained a parole discharge and restoration of his civil rights under RCW 9.96.050, supra, is most certainly defensible from a constitutional standpoint.  With this in mind we turn, now, to our specific reasons for believing that this conclusion is in accordance with legislative intent.

            (a) The California authorities:

            We noted, in answering your first question, that RCW 9.41.040 is quite similar to a statute in the state of California which, in People v. Taylor, supra, was held not to apply to a person who had received a deferred sentence for a felony conviction, once that person had successfully completed his period of probation and had obtained a dismissal of the criminal charge.  While we have found no court decisions from California relating this same criminal statute to a convicted person who has received a restoration of his civil rights, upon completion of his sentence or period of parole, we have found what appears to us to be a well-reasoned opinion of the California attorney general on this question.

             [[Orig. Op. Page 9]]

            In Opinion No. 56-114, dated October 5, 1956, and written to the governor of California, that state's attorney general was concerned with the applicability of the same criminal statute as was involved in People v. Taylor, supra, to (1) a person who had received a full pardon from the governor under Penal Code § 4853, and (2) a person who had obtained a pardon based upon a "certificate of rehabilitation" provided for by Penal Code § 4852.17.

            The material portion of the first of these statutes read as follows:

            "In all cases in which a full pardon has been granted by the Governor of this State . . . it shall operate to restore to such convicted person, all the rights, privileges, and franchises of which he has been deprived in consequence of said conviction or by reason of any matter involved therein; . . ."

            The pertinent language of the second statute was as follows:

            "Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) The right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Section 2 of the Dangerous Weapons' Control Law of 1923 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon."

            The criminal sanction against ownership or possession of firearms by "any person who has been convicted of a felony" was spelled out in § 12021 of the California Penal Code, as follows:

            ". . . any person who has been convicted of a felony . . . who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable  [[Orig. Op. Page 10]] of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both."

            The conclusion which was reached by the California attorney general was that this criminal statute continued to apply to a person who had received a "full pardon" under Penal Code § 4853, but not to a person who had received a pardon based upon a certificate of rehabilitation under Penal Code § 4852.17, unless his prior felony conviction involved the use of a firearm.  In thus concluding, the attorney general reasoned as follows:

            "When a full pardon is granted under the terms of Penal Code section 4853, we have seen under the cases cited above that the convict remains one who has in fact and in law been convicted of a felony.  Section 12021 is silent with respect to its application to pardoned felons.  It applies to 'any person who has been convicted of a felony.'  Sections 644, 666 and 667, which require increased penalties for prior convictions, are also silent with respect to their application to pardoned convicts.  Yet, inPeople v. Biggs, 9 Cal.2d 508, the Court, with reference to these penal sections, said at page 510: 'It is immaterial that the statutes do not expressly refer to persons pardoned after conviction, since by failure to exclude them, they are obviously included within the general provisions.  This is a necessary conclusion from the language of the statutes. . . .'  Consequently, in our opinion, section 12021 is applicable to a convict receiving a full pardon because he has been convicted of a felony, notwithstanding the fact that he has received a pardon.

            "However, where a pardon based upon a certificate of rehabilitation is granted under Penal Code section 4852.17, a convict is by this section expressly revested with the right to own, possess or keep any type of firearm except that this right shall not be restored, and the Dangerous Weapons' Control Act shall apply, if he was convicted of a felony involving the use of a firearm."

             [[Orig. Op. Page 11]]

            Clearly, just as in the case of its California counterpart, nothing contained in our RCW 9.41.040,supra, contains any indication that the legislature intended that this statute should not apply to a person who has been convicted of a crime of violence after he has received a parole discharge and a restoration of his civil rights.  Nor, of course, does anything contained in RCW 9.96.050, supra, state that the civil rights restored to a convicted felon by virtue of a parole discharge should include the right to own or possess a pistol.

            (b) The scope of RCW 9.96.050:

            The parole discharge statute, RCW 9.96.050, was enacted as § 1, chapter 187, Laws of 1961.  By its own terms, it applies to any prisoner who is on parole under the jurisdiction of the state board of prison terms and paroles which means any person who has been convicted and sentenced to a penal institution for the commission of any felony and has been granted a parole under RCW 9.95.110.

            Thus, RCW 9.96.050 may properly be characterized as a general statute, having application to all persons who have been convicted and sentenced for a felony while, by way of contrast, RCW 9.41.040, supra, is a special statute prohibiting the ownership or possession of a pistol only by those persons who have been convicted of one of the specific felonies which have been included in the definition of "crime of violence."  See, again, RCW 9.41.010,supra.

            The rule of statutory construction which is to be applied to resolving apparent conflicts between general and special acts is stated in 2 Sutherland, Statutory Construction, § 5204, p. 541, as follows:

            "General and special acts may be in pari materia.  If so, they should be construed together.  Where one statute deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling."  (Double emphasis supplied.)

            InPeople v. Breyer, 139 Cal.App. 547, 34 P.2d 1065 (1934),  [[Orig. Op. Page 12]] the California court stated the rule as follows:

            "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication."

            If the "general" parole discharge statute, RCW 9.96.050, had expressly listed the "right" to own or possess a pistol as one of the civil rights to be restored by the granting of a parole discharge, then RCW 9.41.040 (which was enacted earlier as § 4, chapter 172, Laws of 1935) would have to be regarded as having been impliedly amended.  Accord, the California attorney general's opinion with respect to the effect of a pardon based upon a certificate of rehabilitation under Penal Code § 4852.17,supra.  However, in the absence of any such express language, the conclusion to be drawn from application of this "special vs. general statute" rule of construction is that, just as before the enactment of the parole discharge statute, a person who has been convicted of a crime of violence and who retains that status continues to be prohibited from owning or possessing a pistol even after he has been discharged from penal custody.

            Stating our thoughts on the matter in a somewhat different way, we believe it proper to regard the purpose of the parole discharge statute, RCW 9.96.050, as being to provide for restoration to all convicted felons, upon parole discharge, of those civil rights which all persons who are convicted of any felony (as distinguished from the more limited classification, crimes of violence) lose by reason of their conviction; e.g., the right to vote or to hold public office, to serve on a jury, to be a witness, etc.  See,State v. Hazzard, 139 Wash. 487, 247 Pac. 957 (1926).  Therefore, since the right to own  [[Orig. Op. Page 13]] or possess a pistol is not one of those rights which is lost in consequence of any felony conviction but rather is lost only in the event of a conviction of one of the crimes of violence listed in RCW 9.41.010, supra it can logically be reasoned that this particular "civil right" is not among those which were intended by the legislature to be restored to a convicted felon upon his receipt of a parole discharge under RCW 9.96.050.

            Accordingly, in direct answer to your second question, it is our opinion that the provisions of RCW 9.41.040 do continue to apply to a convicted person whose civil rights have been restored by a certificate of final discharge issued by the board of prison terms and paroles, pursuant to RCW 9.96.050.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

RONALD E. KUENSTLER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/AGO 65-66 No. 66 dealt with the question of whether a person whose felony information or indictment was dismissed pursuant to RCW 9.95.240 could qualify for and hold an elective state or county office, and concluded that he could.  AGO 65-66 No. 120 concluded that a license permitting a person to carry a concealed weapon, issued pursuant to RCW 9.41.070, could not be issued to an individual who had pleaded or been found guilty of a "crime of violence" as defined in RCW 9.41.010, and who was thereafter placed on probation in accordance with RCW 9.95.200.  It was further concluded, however, that such a person's eligibility to receive a weapon permit should be regarded as restored upon obtaining an order of dismissal of the indictment or information against him pursuant to RCW 9.95.240.

2/This statute provides as follows:

            "The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state."

3/Judge Hamilton was joined in the opinion by Judges Neill and McGovern and Chief Justice Finley.  Two Judges, Hale and Hunter, felt that under the circumstances, no conviction had ever been rendered.  Cf.,Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964).

4/This proviso reads as follows:

            ". . .Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed."

            For a case involving the meaning and application of such a proviso, see,People v. Majado, 22 Cal. App.2d 323, 70 P.2d 1015 (1937).  In addition, various instances of its application are noted in People v. Taylor, supra, in 178 Cal. App.2d at 475.  The point, apparently, is that while the proviso permits the prior conviction to be shown if the person in question commits another crime, it does not revive the prior conviction so as to establish a required element of subsequent conduct which would, otherwise, not be criminal at all.

5/Interestingly, the 1961 California legislature countered this court decision with an amendment to the statute specifically providing that a dismissal of the criminal charge upon completion of the period of probation should not permit the "convicted" person to own or possess a firearm.  See, chapter 1735, Cal. Laws of 1961 [[Calif. Stats. 1961, ch. 1735]].

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