Mesce

[Opinion certified for partial publication. [*] ]

OPINION

LAMBDEN, J.

Defendant Richard Canniff Mesce pleaded no contest to a charge of misdemeanor assault in 1987 and was consequently convicted. Effective 1993, Penal Code section 12021, subdivision (c), made it an offense to possess any firearm within 10 years after conviction of various misdemeanor offenses, including the type of assault previously committed by defendant. In the case before us defendant was convicted of violating this statute, among others. He contends the ex post facto clauses of the federal and state Constitutions protect him from prosecution under the statute and require reversal of his conviction for its violation. We disagree because we find the statute's effect is not retroactive. In an unpublished portion of the opinion, we also reject defendant's other challenges to his conviction.

Defendant was charged with attempted murder (Pen. Code, §§ 664, 187; except as noted, unspecified references are to the Penal Code); assault with a deadly weapon, involving personal use of a firearm (§ 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022.5), and unlawful possession of a firearm within 10 years of being convicted…

*621 Opinion

Defendant Richard Canniff Mesce pleaded no contest to a charge of misdemeanor assault in 1987 and was consequently convicted. Effective 1993, Penal Code section 12021, subdivision (c), made it an offense to possess any firearm within 10 years after conviction of various misdemeanor offenses, including the type of assault previously committed by defendant. In the case before us defendant was convicted of violating this statute, among others. He contends the ex post facto clauses of the federal and state Constitutions protect him from prosecution under the statute and require reversal of his conviction for its violation. We disagree because we find the statute’s effect is not retroactive. In an unpublished portion of the opinion, we also reject defendant’s other challenges to his conviction.

Background

Defendant was charged with attempted murder (Pen. Code, §§ 664, 187; except as noted, unspecified references are to the Penal Code); assault with a deadly weapon, involving personal use of a firearm (§§ 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022.5), and unlawful possession of a firearm within 10 years of being convicted of a misdemeanor assault (§ 12021, subd.…

J.,f Dissenting in part.—I dissent from the affirmance of the judgment of conviction on the charge of unlawful possession of a firearm in violation of Penal Code section 12021, subdivision (c) (section 12021(c)).

*628 I.

The ex post facto clause prohibits any law which punishes persons, or increases their punishment, for conduct predating its enactment. (See Cummings v. Missouri (1866) 71 U.S. (4 Wall.) 277, 325-326 [ 18 L.Ed. 356, 363-364 ], quoted in Weaver v. Graham (1981) 450 U.S. 24, 28 [ 101 S.Ct. 960, 963-964 , 67 L.Ed.2d 17 ]; and see Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 69 , 70 L.Ed. 216 ], quoted in Collins v. Youngblood (1990) 497 U.S. 37, 42 [ 110 S.Ct. 2715, 2719 , 111 L.Ed.2d 30 ].) Thus, no statute can be applied to a defendant if its effect on him is (1) retrospective, and (2) punitive. (Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1683 [ 54 Cal.Rptr.2d 600 ]; People v. McVickers (1992) 4 Cal.4th 81, 85 [ 13 Cal.Rptr.2d 850 , 840 P.2d 955 ]; see Weaver v. Graham, supra, 450 U.S. 24, 31 [ 101 S.Ct. 960, 965-966 ]; Collins v. Youngblood, supra, 497 U.S. 37, 41 [ 110 S.Ct. 2715, 2718-2719 ]; U.S. v. Huss (9th Cir.…