Filed 4/19/16 P. v. Clutter CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B257359

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA060540)
         v.

MICHAIL JAMES CLUTTER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Frank
M. Tavelman, Judge. Affirmed.
         Alan E. Spears, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION
       Defendant Michail James Clutter appeals from a judgment of conviction entered
after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 29800,
subd. (a)(1)), possession of ammunition by a prohibited person (id., § 30305, subd.
(a)(1)), and possession for sale of a controlled substance (Health & Saf. Code, § 11378).
The trial court sentenced defendant to four years and four months in state prison and
suspended execution of the sentence, placing him on five years of formal probation. On
appeal, defendant contends that the trial court erred in failing to instruct on his mistake of
fact defense to the firearm and ammunition charges. Because this contention is contrary
to the holding in People v. Snyder (1982) 32 Cal.3d 590 (Snyder), we affirm.
                              FACTUAL BACKGROUND
       In 2002, defendant sustained two separate felony convictions for possession of
methamphetamine in violation of Health and Safety Code section 11377.
       In August 2013, the police went to defendant’s house to conduct a probation
search of his son’s girlfriend, who lived with the son in defendant’s house. Upon
searching defendant’s bedroom, the police discovered 4.35 grams of methamphetamine,
two smoking devices, a digital scale, and a price list for various quantities of
methamphetamine. The police also found in that bedroom a loaded 12-gauge shotgun
between the mattress and the headboard, 12-gauge ammunition on a shelf above the
headboard, and a second shotgun in the bedroom closet. Defendant told the police that
the methamphetamine was for his personal use and that the shotguns were for protecting
his property. The police also noticed security cameras attached to the outside of the
house with a monitor in the garage that displayed a live feed.
       At trial, defendant admitted that the methamphetamine, weapons, and ammunition
found in his bedroom belonged to him. He denied, however, that he possessed the
methamphetamine for sale. He also denied being a convicted felon. He testified that his
two prior drug convictions were reduced to misdemeanors pursuant to an agreement
between the prosecutor and his counsel. Under the purported agreement, both lawyers
had agreed in open court that his felonies would be reduced to misdemeanors upon his

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successful completion of probation. Defendant presented no evidence of any agreement;
and he did not file a motion or go to court to reduce his convictions to misdemeanors.
                                      DISCUSSION
       Defendant argues that the jury should have been instructed that his erroneous
belief that the felony convictions were reduced to misdemeanors was a mistake of fact
that would preclude him from having the requisite intent to commit the crimes of
unlawful possession of a firearm and ammunition. The California Supreme Court long
ago rejected this same argument. (Snyder, supra, 32 Cal.3d at p. 595.)
       In Snyder, the defendant was convicted of possessing a concealable firearm by a
felon, based on her prior felony conviction for selling marijuana. She contended “that the
trial court erred in excluding evidence of her mistaken belief that her prior conviction was
only a misdemeanor.” (Snyder, supra, 32 Cal.3d at p. 591.) In rejecting the contention,
the court noted that possession of a firearm by a felon is a general intent crime requiring
the prosecution to prove only that the defendant intended to possess the weapon. (Id. at
p. 592.) There is no further knowledge requirement, including “knowledge of one’s legal
status as a convicted felon.” (Id. at pp. 592-593.) On the contrary, the defendant was
“charged with knowledge that the offense of which she was convicted [citation] was, as a
matter of law, a felony.” (Id. at p. 593.) As a result, the defendant’s alleged mistake
about her status was irrelevant: “Thus, regardless of what she reasonably believed, or
what her attorney may have told her, [the] defendant was deemed to know under the law
that she was a convicted felon forbidden to possess concealable firearms. Her asserted
mistake regarding her correct legal status was a mistake of law, not fact. It does not
constitute a defense to [the weapons possession charge].” (Ibid.)
       Defendant argues that Snyder is distinguishable because the felony convictions in
this case were capable of being reduced to misdemeanors under Penal Code section 17,
subdivision (b). This distinction, however, goes only to the potential reasonableness—
not the essential character—of the mistake. The fundamental point in Snyder is that a
defendant’s knowledge about his or her legal status as a felon is generally “irrelevant” to
the crime of possession of a weapon by a felon. (Snyder, supra, 32 Cal.3d at p. 593.)

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“[T]he crucial question is whether the defendant was aware that he was engaging in the
conduct proscribed by [Penal Code section 29800].” (Ibid.)
       In this case, defendant admitted knowing that he possessed the shotgun and
ammunition. Under Snyder, any mistaken belief about whether his felony convictions
were reduced to misdemeanors thus had no legal relevance. The trial court properly
instructed the jury on this point of law: “If you find beyond a reasonable doubt that the
prosecution has proved that the defendant was convicted of a felony, it is not a defense to
this crime that the defendant may have believed he was convicted of a misdemeanor. A
defendant’s asserted mistake regarding the legal status of a crime for which he was
convicted is a mistake of law, and does not constitute a defense to the crimes of
Possession of a Firearm by a Felon or Possession of Ammunition by a Prohibited Person
as alleged in counts 1 and 2.”1
       Accordingly, the trial court was not required to give an instruction on mistake of
fact under controlling California authority. Nor was defendant entitled to this instruction
as a matter of due process, particularly in light of his position in the trial court. Contrary
to his position on appeal—where he claims that he mistakenly believed his convictions
had been reduced to misdemeanors—he argued in the trial court that it was the
prosecution that was mistaken because the convictions were in fact reduced to



1       Defendant argues that the facts in his case are similar to those in People v. Bray
(1975) 52 Cal.App.3d 494, 499 (which was distinguished in Snyder). The following
excerpt from Bray, however, shows that the two cases have little in common: “This
decision should not be interpreted to mean instructions on mistake or ignorance of fact
and knowledge of the facts are required every time a defendant claims he did not know he
was a felon. Here Bray had been convicted in Kansas of what for California is an
unusual crime, ‘accessory after the fact’ and even the prosecutor claimed difficulty in
knowing whether it was a felony. In addition, Bray on more than one occasion had been
led to believe by state regulatory agencies he was not a felon: he was allowed to vote, he
was registered in an occupation allowing him to carry a gun, and he was allowed to buy
and register the gun. Throughout the trial, Bray laid the proper foundation for the
instructions and he requested them. It is only in very unusual circumstances such as these
that the giving of these instructions is necessary.” (Ibid.)


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misdemeanors. His trial counsel explained: “[We’re] not asserting a mistake, and I’m
not going to argue . . . to the jury that it was a mistake . . . . [Our argument is] going to be
that he wasn’t convicted [of a felony].” Thus, defendant cannot complain that he was
deprived of a fair trial by not obtaining an instruction on a defense that he expressly
disavowed. (See People v. Rogers (2006) 39 Cal.4th 826, 872 [“Because defendant was
allowed to present the defense he chose, followed by jury instructions he agreed to, he
was not denied due process by being deprived of the opportunity to present a complete
defense”].)2
                                       DISPOSITION
       The judgment is affirmed.



                                                   BLUMENFELD, J.*


We concur:


               PERLUSS, P. J.



               ZELON, J.




2      Defendant contends that if we were to conclude that the trial court erred in not
instructing the jury on the mistake of fact defense, he would be entitled to a new trial on
his conviction for possession of narcotics for sale because the prosecution relied on his
possession of a weapon as evidence of his intent to sell the drugs. Our conclusion
obviates the need to address this contention.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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