*1 Dec. S043270. 1995.] [No. PEOPLE,
THE Plaintiff and Respondent, BAIRD, Defendant and
ROBERT CHRISTOPHER Appellant.
Counsel Jonathan D. Court, under Soglin, appointment by for Defendant Supreme and Appellant. General,
Daniel E. Williamson, Lungren, Attorney George Chief Assistant General, Bass, Attorney General, Ronald A. Assistant Attorney Ronald S. Salmon, Matthias and David D. General, Deputy Attorneys for Plaintiff and Respondent.
Opinion
BAXTER, J.
conviction is used
a defendant
against
When
to establish the ex-felon element of a
under section 12021 of the
charge
ex-felon),
Penal Code1
of a firearm an
(possession
from that
used to enhance the defendant’s
resulting
*3
667.5,
(b) (section 667.5(b))?
sentence under section
(1976)
The Court of
below concluded that
Appeal
People v. Edwards
411,
(1978)
557 P.2d
and
v.
Cal.Rptr.
People
Wilks
[135
995]
364, 578
Cal.3d 460
P.2d
were
on this
controlling
[146
1369]
cases,
issue. Those
which were decided under the former indeterminate
law, held
when
conviction is used as an element of a
sentencing
crime, the same conviction cannot also be used to increase the minimum
(the
sentence for the crime. In addition to
the rule of those decisions
finding
rule)
Edwards
the Court of
also
v.
applicable,
Appeal
interpreted
753,
Jones
(Jones)—
Cal.4th 1142
857 P.2d
Cal.Rptr.2d
1163]
which concluded as a matter of
that section 667
statutory interpretation
barred the
of cumulative sentence enhancements for a
imposition
conviction under section
667.5(b)
667 and a
term under section
prior prison
based on a
offense—to
the use of a
single prior felony
preclude
prior prison
term to increase the sentence for a current substantive offense whenever the
conviction is
underlying
used to establish an element of that offense.
view,
We conclude the Court of
erred. In our
the Edwards rule has
Appeal
no
here because section
does not
the mere fact of
application
permit
conviction to increase the sentence for a section 12021 offense.
Moreover, Jones,
1142,
did not hold or otherwise
suggest
that a
not enhance the sentence for a current offense
where the
conviction that resulted
term is used to
establish an essential element of the offense. We therefore reverse the
of the Court of
and
judgment
remand the matter
that court with
directions to resolve a
issue consistent with our
remaining
analysis People
v. Coronado
1Unless otherwise
all further
references are to
Penal
of his
After defendant violated conditions
probation,
superior
probation.
defendant to state
revoked the
and sentenced
grant
court
probation
for the firearm
of the midterm of two
consisting
years
a total of three years,
667.5(b).
an enhancement of one
under section
plus
year
possession
On
defendant contended that the use of the same
appeal,
to establish the ex-felon element of the
under section 12021 and
charge
enhance the sentence therefor violates section
which bars multiple
of an “act or omission.” He also contended that such a use
Wilks,
under
prohibited
II. Discussion Edwards, The issue before us is whether v. 18 Cal.3d People supra, 796, Wilks, 460, 1142, v. People 5 supra, Cal.4th the use of a term to enhance a sentence under section prohibits prior prison 667.5(b) where the prior conviction that resulted in the term is used to prison establish the ex-felon element under section 12021. charge here,
As section 12021 makes pertinent it a for who has felony any person been convicted of a under state or federal law to own or to 12021, or control of a possession, custody, (§ (a).) firearm. subd. The ex-felon status of a under person charged section 12021 is an element of the offense which must be (See to the trier of fact. proved v. People Bouzas 467, 847, 479 807 P.2d Cal.Rptr. [contrasting 1076] under 12021 and prosecutions those under 666 for theft with petit § theft-related conviction].)
Section 667.5 provides pertinent “Enhancement of terms part: for new offenses because of terms shall be as follows: prior prison imposed (b) (cid:127) (cid:127) (cid:127) . . . where the new offense is for which a any felony [U OH sentence is in addition and imposed, consecutive terms any the court therefor, shall impose one-year term each prior separate prison for term served any felony, that no additional term provided shall be imposed for under this subdivision for served to a of five period in which years the defendant remained free of both and the prison custody commission of an (Italics offense which results in a conviction.” added.) we note defendant does not
Initially
argue that either section 12021
or section
the use of a
expressly precludes
conviction
to establish the ex-felon
12021),
element of the substantive offense (§
the simultaneous use of the
term served for
that same prior
Rather,
667.5(b).
enhance the sentence therefor under section
defendant relies
decisional law and the
enact
upon
legislative
principle
ments should not be construed to overthrow
long-established principles
(See
law unless such an intention is
shown.
v. Pitts
clearly
People
757].)
Cal.App.3d
Prior to the effective date of the determinate
law (July
sentencing
1977), it was clear that a trial court could not
a defendant’s
rely upon
felony conviction to
a sentence under
augment
former section
subdi-
(c)2
vision
where the same conviction had been used to
the ex-felon
establish
element of an offense under section 12021. This was the rule
expressed
Edwards,
Wilks,
v.
Effective the Uniform July Determinate Act of 1976 Sentencing 1976, (Stats. 1139), became law ch. and former section 3024 was repealed 1976, 1139, (Stats. 279, 5151). ch. Section was enacted as p. part § 1976, 1139, 268, (Stats. 5137-5139.) the new law. ch. pp. § provided 2Former section 3024 part: following in relevant “The shall be the minimum term cases, imprisonment sentence and notwithstanding any provision certain code, any provision (c) specifying of law person lesser sentence: . . . For a [1 []D 1957, previously (Stats. 1617, 3, 2964, years.” convicted . . . two p. ch. italics § added, 1976, 1139, 279, 5151, 1, repealed by 1977.) p. operative July Stats. ch. §
131 to our former section 3024’s decision repeal After 1142, number of courts concluded that the supra, appellate rule. enactment of the determinate law Edwards sentencing abrogated 1272, 263]; (1992) 4 v. Price 1278 (E.g., People Cal.App.4th Cal.Rptr.2d [6 517, (1988) Cal.Rptr. v. 206 519-520 People Rodriguez Cal.App.3d [253 749, 489]; 633]; 752 v. Levell 201 People Cal.Rptr. Cal.App.3d 1106-1107 v. Bruno 191 People Cal.App.3d 31].)3 Legislature For the most those courts found it that significant part, deleted the sentence from the final version of following (b), fact to its date: “In no event shall any operative determine, ch. (Stats. used twice to or enhance a sentence.” aggravate, view, codified the In their this sentence was to have p. rule; intent to eliminate the Edwards thus its deletion reflected legislative Price, 1278; v. Rodriguez, rule. v. at (People supra, Cal.App.4th People Levell, 519-520; at v. Cal.App.3d pp. 752; Bruno, at at Cal.App.3d Cal.App.3d pp. 1106-1107.)
The Court of in this case with the above authorities. In disagreed whether the deleted was intended to the Ed- questioning language codify rule, Darwin, wards the court from quoted following passage 1103-1104: “The Edwards was Cal.App.4th pages holding offense, if conviction is an ‘element’ of an not be prior may used for sentence enhancement. The later-deleted sentence in the [Citation.] version of original section 1170 did not address the dual use of a as an enhancement, element of an offense and for sentence but addressed merely ‘determine, fact sentencing, stating could not be used twice to aggra- vate, Thus, or enhance a sentence.’ These two are not the same. points action did not legislative abrogate Edwards rule.”4 The Court of Appeal then concluded that even if the original meant to language codify rule, Edwards it could not be inferred from its deletion that the reasonably *6 had intended to overrule the sub Legislature case silentio. view, Wilks,
In our v. v. People 796 People no have direct on the issue at hand. simply bearing rejected Edwards rule deciding prior 3These cases the the context of that when a conviction is (petit used to establish a prior), offense under section 666 theft with a the resulting incarceration purposes. Although appellate utilized for enhancement one initially (People the Edwards rule was court applicable concluded that in that context v. Ancira (1985) 527]), 164 Cal.App.3d Cal.Rptr. eventually repudiated 378 the same court [210 (1993) 894], v. Darwin that conclusion in Cal.App.4th Cal.Rptr.2d 12 1104 [15 Darwin, 4People hold, however, rule, the Edwards v. went on to that while not abrogated, apply prior does not sentencing when a conviction is used as a factor under section (12 Cal.App.4th 666. at 132
Those cases for the that stand when a is proposition conviction used as prior 12021), an element of a crime the (e.g., cannot conviction also be used to increase the minimum for the sentence crime. That is not principle 667.5(b) Section implicated here. does not mere fact of permit the a Rather, conviction the to increase sentence for a section 12021 offense. 667.5(b) section authorizes additional if the additional punishment only factor of incarceration for the conviction is established.
In this we find the Gaines following regard, reasoning (Gaines) 112 508 “Whereas Cal.App.3d Cal.Rptr. persuasive: 381] former section a minimum for a prescribed term of imprisonment 667.5, (b), convicted of a section subdivision person ‘previously felony,’ now the provides for of enhancement for imposition one-year sentence ‘each term served’ The prior separate prison felony. Attorney General that the ‘double use of facts’ be made under argues cannot argument 667.5, (b), section subdivision it is the ‘conviction’ because which constitutes an essential element of crime of a firearm a possession by felon, it is the whereas term served’ for the ‘prison which prior felony 667.5, triggers (b). enhancement section prescribed by subdivision The distinction between a conviction and a prior felony separate prison served for is such obvious. A conviction could well prior felony have resulted in less than confinement in the something prison, state event no enhancement would be for under called section 516; (b).” (Gaines, see also Cal.App.3d Faught short, 124 Cal.App.3d 637].) In Edwards here, where, rule is not (i.e., as a fact service of impinged upon a prior term) not integral to an element of section indispensable (i.e., conviction) is used to sentence enhance a therefor. the above Court of rejecting analysis, Appeal interpreted supra, 5 Cal.4th as conclusion that section compelling a defendant for the fact of the punishes not for the underlying service of the prior term for whether purposes assessing demonstrate, use dual of facts has As improper occurred. we shall interpretation wrong.
Jones addressed issue whether section enacted the voters in 8,5 part Proposition cumulative permitted imposition sentence enhancements for a conviction under 667 and a *7 Jones, 1142, decided, supra, 5When 5 Cal.4th provided pertinent part: was section in 667 “ (a) 1385, (b) In compliance with subdivision of Section any person convicted of a ‘HO serious felony previously . . . who has been convicted of a in this state serious or of any in jurisdiction offense committed another which includes all of elements of offense 667.5(b), single based on prior section term under matter, determined, that sections as a (there, preliminary Jones kidnapping). individuals situated differently 667.5(b) identify punish not and do 667 and to the two bemay exposed whether a defendant of deciding for purposes at (Jones, pp. supra, offense. prior same enhancements in based 1149.) analysis was upon 1148- That determination 1012], 787 P.2d 439-440 Prather enhancements imposed pursuant term” concluded that “prior prison within enhancements conviction” 667.5(b) are “prior felony section Constitu I, (f), of the California subdivision of article section meaning from the tion, are exempt that constitutional provision by operation (g). limitation contained in section double-the-base-term issue, at to the same facts enhancements applied After that both finding that the most determine of statutory interpretation Jones applied principles enhance- that when statutory of section multiple reasonable reading offense, one which is a are available prior ment provisions enhancement, (5 apply. enhancement only greater section 667 resolved 1150.) construction of section 667 statutory Cal.4th at Since its p. defendant, whether declined to address the matter to the Jones favorably to enhance- dual applicable section 654’s against punishment prohibition 1152.) (5 Cal.4th at ments. p. discredited, the Court of that the Gaines was analysis concluding in Jones that the distinction on the statement
Appeal placed heavy emphasis for enhancement was between terms and felonies purposes ’ ” “ ‘ and, inference, and “supertechnical." ‘untenable’ ‘hypertechnical’ Prather, 1148; (Jones, 5 Cal.4th at see also 439-440.) this the court determined language, Cal.3d at pp. Relying upon Gaines, to the extent had been disapproved Cal.App.3d it on enhancement is based relied the rationale that section upon not conviction. the fact of term and underlying our The Court of the true nature Appeal misapprehended scope clear, based As makes its specifically decision Jones. Jones opinion (5 Cal.4th construction section 667. holding upon pp. statutory 1152.) enhancements under section 1149- Jones determined that Although receive, present felony, imposed by the court for the serious shall in addition to the sentence offense, five-year charges brought and tried for each such conviction on enhancement consecutively. separately. The shall run present terms of the offense and each enhancement (b) provisions under applied imposed This section shall not when the HD requirement of longer imprisonment. There is no of law would result term of ” (§ apply.’ quoted incarceration commitment for Cal.4th at *8 667 and section to the same facts” for “apply of purposes analyzing (5 1149), section 667 Cal.4th at Jones did not p. suggest that convic- tions and terms must be viewed prior prison as the same always applying to facts of context. Nor did Jones regardless of certain disapprove meaningful distinctions that had been drawn between convictions and judicially terms. prior prison
Rather, in focusing upon electorate’s intent in section enacting Jones that almost all emphasized prior convictions enhancement justifying under section 667 would entail a term: “If a prior prison 667.5, ‘violent’ for an enough qualify enhancement under section it will a fortiori be noxious (a) as ‘serious’ under enough qualify subdivision of section and will almost have resulted in a always term. The prison result is that enhancements will five-year become eight-year enhancements (5 in all but a very added.) cases.” Cal.4th at italics p. Recognizing few that the defendant there received not the enhancement under three-year section (a), but rather a enhancement one-year under 667.5(b), Jones concluded: “Just as it would be anomalous for the five, law to enhancement when the impose eight-year voters so specified also would it be for the law to enhancement when the impose six-year (5 voters five.” omitted.) Cal.4th at fn. specified To avoid that result, Jones construed section 667 to bar the cumulative of both imposition enhancements. Jones,
Unlike the situation in it cannot be said that all or particular nearly all convictions used to establish the ex-felon element of a section 12021 violation will have resulted in the service of a term. In prior prison words, sixteen-month, there is no that the and three- danger two-year state terms year (see law for violations of section 12021 prescribed by 18) will become twenty-eight-month, terms “in all three-year four-year but a few very 1150.) cases.” with (Compare supra, Cal.4th at p. Because a enhancement one-year in those cases where a applies only term, in a resulted no in of the sort Jones is anomaly threatened.6 the Court Accordingly, erred in relying upon decision to find a dual use of facts. prohibited 6Relying reports on certain are outside the record and were not considered Legislature 667.5(b), enacting sections 12021 and Justice Kennard half claims that over post, (Dis. those convicted of felonies served a opn„ pp. term therefor. at reports legislative 142-143 & fn. We find such are irrelevant to the issue of intent and we seriously question percentage whether felons who served terms for their However, accurately extrapolated convictions has been accept therefrom. even if we were to Justice Kennard’s purposes argument, calculations both relevant and correct nearly “fact” that half of those convicted of felonies did not serve a term for (see opn., post, 142) their convictions supports dis. our conclusion that the service of a *9 the Court of analysis, Appeal of its part We As point. address one a section permit had intended Legislature truly that if the concluded case, have of this it could under the circumstances 667.5(b) enhancement section it did with enhancements under its intent as clearly expressed 12022.5, authorizes enhancements (d). That provision expressly subdivision been in where the defendant has of a firearm cases for the use personal 7 We find of a firearm. weapon with a means deadly by convicted of assault this flawed. reasoning whole, Court of as 12022.5 does not a section support
Considered (a) 12022.5 states In subdivision of section Appeal’s position. particular, that, as who “any otherwise except provided, person personally explicitly shall, of a commission or commission a felony uses firearm the attempted consec- felony, or in addition and felony conviction of upon attempted or of attempted felony utive to the punishment prescribed convicted, term or she been be an additional of by which he has punished 3, 4, a state or 10 unless use years, imprisonment of firearm (Italics he was .” is an element which or she convicted. . . of offense of 12022.5, added.) (d) of section which the Court Subdivision upon relied, (a)’s on prohibition lists to subdivision merely exceptions specific 15, (See (1987) 18-19 dual use.8 Cal.App.3d Martinez as 12022.5 amended by similar version [interpreting 272] § 1982, 1404, 5358].) ch. Stats. contrast,
In no the relevant statutes here like proscription contain express Hence, (a) in subdivision of section 12022.5. the absence of provision 12022.5, (d), no If similar to that in subdivision is of significance. section 12022.5, we infer from the section anything, may prohibitive language that, (a) to forbid a subdivision if had intended Legislature actually dual use in the context of term enhancements for perceived integral indispensable We'therefore are term neither nor to a conviction. 1142, the Edwards holding poses our satisfied that no conflict with rule, re Shull 417], or Cal.2d 745 P.2d (d), by provides provided 7Section in full: “The additional imposed paragraph section in cases of assault with firearm under of subdivision 245, 245, (a) deadly with or weapon Section or assault a firearm under Section vehicle, killing shooting murder from perpetrated if the was means firearm a motor bodily intentionally person great at another outside of the with the intent to inflict vehicle injury death.” or Appeal, place emphasis previous on appears 8Unlike Court of defendant more 1, 1976, 1139, 305, 5162, 1977; (Stats. July operative of section ch. versions 12022.5 § 1977, 165, 1, 1977), predecessor §92, p. operative July Stats. ch. well as statute enactments, (Stats. 1900-1901). ch. We but pp. have reviewed these earlier they position. find do not aid defendant’s convictions under section it could have and would have invoked in section 667.5(b).9 analogously-appropriate language
III. Disposition *10 it Because concluded that the term erroneously enhancement prior prison must be stricken under
Wilks, and the Court did not consider defendant’s alternative that the enhance- Appeal argument ment was otherwise barred under and section 654. That issue is analyzed decided in the case of v. Coronado. We therefore reverse companion of the Court of and judgment remand the matter with directions to resolve the section 654 issue consistent with that decision.
Lucas, J., Arabian, J., J., J., C. George, concurred. Werdegar, KENNARD, J., Dissenting. a conviction be used May single prior (here, both to establish an element of a offense the offense of charged of firearm a convicted of a and to possession by person previously felony) is, (that term prior enhancement of an support imposition additional and consecutive term when the person committing felony has served a term in state The holds it previously prison)? majority may. I disagree. brief, conviction both to an element of a using single establish prior offense and to term enhancement
charged support prior prison offense violates an established rule of construction that a fact statutory single not be used both to establish an element of an offense and to increase for that offense. The from this punishment majority attempts escape rule a distinction between by increased for a drawing punishment term, conviction and increased for a but the punishment major- is irreconcilable with ity’s reasoning decisions of this court rejecting that the Edwards rule remains attempt point 9In a final to illustrate the applicable unless the intention, Legislature clearly expresses contrary Safety defendant cites to Health and Code expressly which persons authorizes sentence enhancements with certain law, drug-related convictions addition to authorized First, including reject enhancements under section We argument. explained 667.5. as above, rule, prior term enhancement does not violate the Edwards imposition of a conviction to establish the ex-felon element for a prohibited the use of the Second, section 12021 offense and to increase the minimum sentence therefor. because Health Safety Code section 11370.2 concerns sentence for substantive offenses enhancements element, requiring proof not attempted analogy of a an defendant’s is off the mark. Consistent with and “hypertechnical.” distinction as “untenable” that same decisions, here imposi- rule to bar I would the established apply those prior term. term for the prior prison tion of the additional I having firearm after of a Baird guilty possession Defendant pleaded Code, 12021, (a)). He admitted subd. (Pen. been of a felony convicted § 667.5). The (id., for a felony that he had served a allegation revoked the court but later court defendant superior granted probation, The after certain conditions probation. defendant violated probation *11 term for illegal court defendant to a of two years then sentenced consecutive court added an additional and offense. The weapons possession admission “enhancement” based on defendant’s term a sentence one-year term of a of the total making aggregate prison allegation, three Defendant years. appealed.
The enhancement one-year Court struck the Appeal term, it to increase defendant’s with defendant that was agreeing improper conviction he had a term for the same sentence because served The Court of charge. used element of the to establish an firearm possession first, concluded, conviction not be single may that a Appeal prior felony to an element of offense and to establish an charged used both establish second, and, convic- a that a prior felony element of sentence enhancement of the term enhancement. essentially tion is an “element” for review. granted This court the People’s petition II As not be authority may for the that a conviction proposition used an of a offense and to increase the both establish element charged offense, court’s for that same the Court cited this punishment decision in v. Edwards Cal.3d 796 case, P.2d In a of firearm had convicted the defendant jury 995]. here), a issue and the (the convicted felon offense at possession by is, (that court it had his had superior “augmented” imposed sentence a term) been convicted of increased minimum because he had previously court The issue felony. superior before this court was whether primary a recommendation in was reasons for required give probation rejecting issue, court took single Before report. presentence addressing of what we characterized as “an obvious error in paragraph dispose (Id. 800.) We said that the same conviction using sentencing.” of the and to increase the both to establish an element offense afoul of the rule that when a for that same offense “runs established constitutes an element of criminal conduct which otherwise noncriminal, would be the minimum sentence not be increased because (Ibid.) conviction.” This court did not indispensable prior explain rule,” basis of the “established but we did cite four earlier cases as legal rule, Cal.2d 745 for the one of these re Shull being authority in Shull sheds P.2d An examination of this court’s decision light 417]. rule. on the basis analytical who contended that
Shull was a habeas proceeding corpus by prisoner Shull, (In re he was entitled to release because he had his term. completed 745, 747.) The had been convicted of assault with prisoner Code, (Pen. 245) and had the term of impris- deadly weapon completed onment for that crime. The issue was whether he should be to also required term, serve a and additional under section 3 of the Deadly Weapons separate (Stats. Act et while ch. seq.), committing armed with of certain enumerated statutorily deadly weapons. Ruling *12 term, we said: that the should not be to serve the additional prisoner required believe, however, “We do not that the intended that section Legislature of which the of the Act should be where the Deadly Weapons applied 245 of stands convicted is that of assault with a under section person pistol the Penal Code. . . . It is that section of the Penal Code is a apparent for a It defines and determines the specific specific provision. punishment crime, case, kind of a assault with a in the instant a pistol. deadly weapon, hand, On the other section 3 of the Act which the Deadly Weapons imposes crime, an additional refers to no but penalty purports require particular the the same committing added for felonies where one punishment generally is armed a or therein and in section designated with the other pistol weapons 1. It is the rule that a statute controls over a statute. general general special that believed that It is not unreasonable to the suppose Legislature [Citation.] factors, the for felonies which the use of a was not one of essential gun like, such as and an should be imposed by the added rape, larceny, penalty armed with such a would weapon reason the fact that defendant being be more of death or physical because of the probably dangerous probability Hence, such a condition would be injury being inflicted the weapon. reasonable where felonies are involved grounds increasing penalty . . . which do not include as a armed with a being pistol. element necessary a for an assault where has fixed the Briefly, Legislature punishment used, crime, not to be that supposed a it is deadly weapon particular and pun the added factor any existing additional offense without for the same 745, 749-751.) Shull, (In Cal.2d re should be imposed.” ishment both Thus, fact single rule” use prohibiting the “established for the same crime and increase punishment an element establish that on the idea intent. It is based commonsense crime is a rule of legislative conviction, fact, of the as a defendant’s part when a such crime, crime takes already for that specified definition of a the punishment been taken into already fully into the fact has fact account. Because crime, for the the Legisla account in the statutorily prescribed punishment ture does not intend that the statutorily prescribed punishment presumably increased, statute, for fact a more very further under general Shull, (In re “without additional factor any existing.” 751). in which model criminal
This reasoning presupposes of one or more sentence for defendant convicted determining proper when a financial crimes is what accountant does preparing analogous the client’s statement an individual or To corporation. accurately portray once and financial the accountant must count each asset or position, liability once, If to be than on the once. an asset were counted more total only If a counted liability credit side would be and inaccurate. were exaggerated once, more than side of would be inaccurate similarly debit the statement and into So also with the a sentence exaggerated. “accounting” goes to accurately calculation. assess the defendant’s each Ideally, culpability, once, relevant should be counted circumstance aggravating mitigating but once. “double on either the or only Any counting,” mitigat- aggravating side, omission, ing will distorted inaccurate yield picture *13 defendant’s culpability. fact, the “dual or runs use” “double against counting” prohibition our law. One is found in Penal Code section
throughout example sentencing 654, which states that when an act or “is made in omission punishable Code, different be ways “may different of the Penal it by provisions” no it under either of such but in case can be punished provisions, punished use” under more than one.” Another of the “dual example prohibition (b), found in Penal Code section that “the specifies fact of enhancement” not be used to term. The may upper impose 420(c) in rule of the California Rules of Court. A prohibition appears 420(d) is an rule states that a “fact” that element companion provision, crime not be to term. there is the may Finally, used impose upper construction, discussed, rule of that when a judge-made already statutory offense, is an it not also be used may element of the to 140 796, 800;
increase see punishment. (People (1978) also v. Wilks 578 P.2d Cal.Rptr. [146 instances, however, 1369].) In a few has Legislature expressly permitted Code, 12022.5, (See (d) double Pen. subd. use enhance counting. [firearm § firearm, with ment be for the offenses of assault with a assault may imposed & vehicle]; Health or murder from a motor deadly weapon, by shooting Code, 11370.2, (b) (c) Saf. subds. & offense enhancement [prior drug enhancement].) with These along provisions imposed to the general show that the knows how to carve out an Legislature exception when it wishes to do so.1 dual-use prohibition when Hard are the dual use presented prohibition questions applying is, of a there is an area of when the definition partial overlap—that statutory (or the crime and the of a requirements penalty-increasing provision require- ments of two such share a common fact or element but penalty provisions) If each has at least one additional fact or element that is not common. both common are fact or element is double counted. If provisions applied, the other one the noncommon fact element of only provision applied, is not counted at all. Neither solution is provision perfectly satisfactory must decide the dual use based on what seems the courts whether permit most reasonable inference an unstated intent. concerning legislative case, be decided is this: does to the facts of this
Returning question both element of an the “established rule” double a fact as against counting offense and as a factor increased for the offense warranting punishment offense of firearm a convicted felon and the apply possession by for defendants who have served punishment enhancing provision it The reaches terms? The concludes that does not. majority majority this conclusion that here the fact which is an element of the determining offense—defendant’s been convicted of a previously having felony—differs from the fact used to increase the for the offense— essentially ante, defendant’s served a term. previously (Maj. having opn., 132.) But this court has twice distinction the rejected very previously draw, seeks to first v. Prather majority 1012], 787 P.2d and then v. Jones again Cal.4th 857 P.2d Cal.Rptr.2d 1163]. Prather,
In to our state Constitution this court held that an amendment that be used for sentence enhancement convictions requiring prior felony ante, 131), majority (maj. opn., p. expressed 1As the of have *15 142 Prather, 428, v. italics.) 50 Cal.3d
(People
original
But essen-
Shull,
There,
the same was true in In re
tially
The inference of intent to dual use is legislative preclude strongest, course, will, instance, when the fact that is an element of the offense in every also for the satisfy increased But the same requirements punishment. inference of intent legislative is also when the increased justified is based on the fact that primarily element of the offense. That is the Prather, situation here. As this court in explained People 428, 440, the term enhancement “aimed at the primarily conviction.” underlying felony
The majority asserts dual use is because “it cannot be said permissible that all or all convictions used to nearly felony establish the ex-felon element of a section 12021 violation will have resulted the service of a prior prison ante, 134.) term.” (Maj. But the “all or all” opn., majority’s nearly Rather, standard is too strict. an inference of intent legislative preclude dual use is whenever the fact that is an element of the offense will proper or commonly” also for increased “necessarily satisfy requirements pun- ishment. v. Jenkins {People added; accord, 587], Coronado,
P.2d italics Here, it cannot be said that convicted felons found in possession a firearm have not served “commonly” terms their felony convictions. research indicates that over half of all
My convicted of felonies in persons California serve a term for that When of convicted felony.2 group firearm, felons is narrowed to those found in of a subsequently possession 2A Justice, Center, report Department Law Enforcement Information (table 38) showing dispositions” years contains a table the “adult arrest for the 1989 to table, According to resulting 1994. the number superior arrests court 81,342, 29,852 death, 1,198 initially convictions was of which were sentenced to Center, were Authority, committed to the California Rehabilitation 70 were sent to the Youth 49,472 fine, granted probation, were only jail 737 received and 13 were sentence or a *16 even a term is probably served prison who have previously the percentage a both indicates of firearm because the subsequent possession larger offense felony more that the likely prior it violence (making propensity disregard a continued to warrant and was serious enough imprisonment) not suc- did it that the individual more (making likely legal requirements convic- that felony I conclude Accordingly, cessfully complete probation). offense of firearm the element of used to the conviction prior tions establish resulted in the service have commonly convicted felon will by a possession terms. prison III Prather, the we in As indicated the a subset of all instances in which term enhancement addresses prison conviction, the has and enhancement felony defendant suffered itself only at the conviction and secondarily aimed primarily Therefore, on an term. to term enhancement impose prison this that conviction means that felony offense has as an element twice, as an conviction—is considered first being fact—the prior felony increase for the same element of the offense and second to the punishment offense, sentence. Because thus and unduly irrationally lengthening in other of the subset includes a entire large percentage group—because, words, found in possession conviction of later persons of the firearms will have in terms—construction commonly prison resulted relevant the established rule in expressed statutes is controlled by of a which dual use prohibits single and increase the both offense prove offense. were for many superior classified as To determine of the court convictions “other.” how offenses, county jail or felony nonfelony sentences of I subtracted the who received fine, 80,605 not leaving persons Because the table does total of convicted felonies. initially granted probation eventually and many probation indicate how of those violated Abstract, source, term, prison served a I consulted reliable the California Statistical another 46,315 reports year, prisons state inmates who were that in the our received N-2, (Cal. category This would “committed court.” Statistical Abstract table appear initially who denied probation include both those convicted of felonies were 80,605 Thus, prison following probation appears those who were it that of sent to violation. felonies, 46,315
persons prison convicted of served terms. 80,605 recognize possible objections figure represent I not to this conclusion. The felony actually the total occurred in but rather the convictions total 46,315 in resulting persons convictions from arrests And the committed to 1993. undoubtedly years include some who were convicted and were sent to earlier revocation, following figure undoubtedly were probation and the same excludes some who only probation convicted in were committed revocation in a later 1993 but after a data, Nonetheless, reasonably one can conclude absence of a year. I think from measure, precise more those of felonies in California reliable that over half of convicted years in recent serve terms convictions. for those I would affirm the Accordingly, Court of judgment Appeal striking *17 term enhancement. J., Mosk, concurred. notes at some Courts Legislature abrogated general prohibiting the view that the rule of construction dual use in, from, 1170, (b). by codifying deleting first it and then it Penal Code section 1101, People v. Darwin Cal.App.4th For the reasons stated in 1103-1104 [15 894], Cal.Rptr.2d I conclude that this view is mistaken. 28, Const., I, (f)) subd. (Cal. abrogated art. limitation” “without § 1170.1, Code, (Pen. (g)) subd. limitation “double-the-base-term” statutory § (b)). subd. (id., term” enhancement to the “prior prison as applied § conclusion, 428, we Prather, 440.) To reach this supra, v. (People felony to referring language to the constitutional why had explain so in We did terms. for prior prison to an enhancement convictions applied is new offense that ‘where provides “Section the following way: consec- and addition a for which sentence imposed, felony prison any therefor, one-year the court shall impose terms utive to prison (Italics any felony.' served term term for each prior separate at the 667.5(b) is aimed added.) primarily We think it clear that conviction, of and as an indicium secondarily, and only underlying felony is, seriousness, believe section term. That we at the felony’s read, sentence enhancement for 667.5(b), fairly merely special provides serious were deemed convictions’ that felony subset particular ‘prior (Peo- courts to warrant actual sentencing imprisonment.” earlier enough by 428, Prather, italics.) original v. ple supra, Jones, v. the issue was whether Cal.4th supra, be increased by imposing defendant’s sentence for a conviction could felony (under conviction Pen. additional terms both for a serious Code, convic- 667) served for the very and for the term prior prison § Code, (under en- 667.5). We concluded that two sentence tion Pen. is, the hancement are alternative rather than cumulative—that provisions two but not both. To reach court is to sentencing impose greater conclusion, Prather, for the on we relied v. the same facts—the prior “both enhancements apply proposition Jones, 1149.) We of a v. at reaffirmed felony.” (People conviction had “the distinction between the conclusion we reached Prather that ‘untenable’ terms and felonies for enhancement purposes [is] ” ‘ ’ inference, and, v. (People ‘hypertechnical’ “supertechnical.” Jones, 1148.) Thus, of a rule” dual use because the “established rejecting against term, the distinction between conviction has rejected on a distinction that this court majority relying previously “untenable” and (People “hypertechnical.” 1148; Prather, supra, 50 Cal.3d true, course, out, It is that not every prior felony as majority points enhancement, will but a defendant the prior prison expose that were deemed “that subset convictions’ only particular ‘prior actual serious earlier courts warrant enough by sentencing imprisonment."