THE PEOPLE, Plaintiff and Respondent, v. VICTOR CORREA, Defendant and Appellant.
No. S163273
Supreme Court of California
June 21, 2012.
331
Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Robert C. Nash and Jennevee H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
CORRIGAN, J.-After police found defendant Victor Correa hiding in a closet with a cache of guns, he was convicted of seven counts of being a felon in possession of a firearm. (
We hold as follows. By its plain language section 654 does not bar multiple punishment for multiple violations of the same criminal statute. Contrary dictum in a footnote to Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote 1 [9 Cal.Rptr. 607, 357 P.2d 839] (Neal), is disapproved. We do not apply this interpretation to defendant because the law has been unsettled in this area. Even so, defendant‘s sentence did not violate section 654 because specific statutory authority makes possession of each weapon a separate offense. (Former § 12001, subd. (k).)2
I. FACTUAL AND PROCEDURAL BACKGROUND3
In response to a report that someone was taking firearms into a house, Officer Kevin Howland went to the residence of defendant‘s parents. Howland saw defendant get out of a car and walk into the garage. The car had been reported stolen. Other people left the house and were detained, but defendant barricaded himself inside. After firing tear gas into the house, a SWAT team entered. Defendant had hidden in a closet under some stairs and was stuck. Officers had to break open the back wall of the closet to extricate him. Seven
A jury convicted defendant of seven counts of being a felon in possession of a firearm4 and one count of receiving a stolen vehicle.5 Defendant waived his right to a jury trial on allegations of prior convictions. The court found that he had two felony convictions for forcible sodomy,6 which qualified him for life sentencing under the three strikes law.7 It sentenced him to eight consecutive terms of 25 years to life, one for each firearm possession and one for receiving a stolen vehicle.
The Court of Appeal affirmed the judgment. We affirm the judgment of the Court of Appeal.
II. DISCUSSION
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
In Neal, supra, 55 Cal.2d 11, the court added a “gloss” to section 654 that has been a subject of continuing controversy and given rise to much confusion. Neal threw gasoline into a couple‘s bedroom and ignited it, intending to kill the occupants. The victims were severely burned, but survived. Convicted of arson and two counts of attempted murder, Neal contended he could not be punished for the arson. (Neal, at p. 15.)
Even though section 654 refers to an “act or omission,” the Neal court opined that “[f]ew if any crimes . . . are the result of a single physical act.” (Neal, supra, 55 Cal.2d at p. 19.) Accordingly, the relevant question is typically whether a defendant‘s ” ‘course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ ” (Ibid., quoting People v. Brown (1958) 49 Cal.2d 577, 591 [320 P.2d 5].) To resolve this question, the Neal court
In People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611] (Latimer), this court criticized Neal‘s analysis, but declined the Attorney General‘s invitation to reconsider the Neal “gloss.” “While sympathetic with some of the Attorney General‘s arguments, we conclude that we may not now overrule Neal, supra, 55 Cal.2d 11, and its progeny. For three decades, the Legislature has enacted new sentencing statutes in light of those cases. Although the Legislature has not expressly ratified the Neal rule, it has impliedly accepted it. In some respects, the sentencing structure we have today would be different but for the Neal line of cases. To overrule them now would result in a sentencing scheme intended by no one. Principles of stare decisis compel us to adhere to the Neal test. Any changes must be made by the Legislature, not this court.” (Latimer, at pp. 1205–1206.)
The court stressed, however, that “nothing we say in this opinion is intended to cast doubt on any of the later judicial limitations of the Neal rule.” (Latimer, supra, 5 Cal.4th at p. 1216.)
In order to parse out the applicable precedent and to identify the flaw in the Neal footnote, it is important to distinguish among three related but distinct concepts: multiple prosecution, multiple conviction, and multiple punishment.
Section 654, subdivision (a), addresses multiple punishment and multiple prosecution. The multiple prosecution bar, set out in the last sentence of subdivision (a), is a ” ‘procedural safeguard against harassment and is not necessarily related to the punishment to be imposed . . . .’ ” (People v. Britt (2004) 32 Cal.4th 944, 950 [12 Cal.Rptr.3d 66, 87 P.3d 812] (Britt), quoting Neal, supra, 55 Cal.2d 11, 21.) This case involves only the multiple punishment aspect of section 654.
It is also important to recognize that section 654 concerns only multiple punishment, not multiple convictions. “It is well settled that section 654 protects against multiple punishment, not multiple conviction.8 (People v. McFarland, supra,] 58 Cal.2d 748, 762 . . . .)” (People v. Harrison (1989) 48 Cal.3d 321, 335 [256 Cal.Rptr. 401, 768 P.2d 1078] (Harrison).) As we
This case involves multiple violations of the same statute, while the express language of section 654 applies to an act that is punishable in different ways by different provisions of law. That language notwithstanding, in the Neal footnote the majority remarked: “Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section or to multiple violations of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. (People v. Brown, 49 Cal.2d 577, 591 . . . ; see People v. Roberts [(1953)] 40 Cal.2d 483, 491 [254 P.2d 501]; People v. Clemett [(1929)] 208 Cal. 142, 144 [280 P. 681]; People v. Nor Woods [(1951)] 37 Cal.2d 584, 586 [233 P.2d 897].)” (Neal, supra, 55 Cal.2d at p. 18, fn. 1, italics added.)
We asked the parties to file supplemental briefs addressing the following questions regarding this dictum.
(1) Does the authority cited in this footnote support the italicized language?
(2) In light of the language and purpose of section 654, is it reasonable to apply it to bar multiple punishment for multiple violations of the same provision of law?
In his supplemental letter brief, defendant raised two related issues. As explained below, although the Neal footnote was dictum, subsequent decisions of the Court of Appeal have applied section 654 to multiple punishment for violations of the same provision of law. The question arises whether stare decisis and legislative acceptance compel us to continue to follow the Neal footnote, just as they required us to follow the Neal gloss in Latimer, supra, 5 Cal.4th 1203. Further, may a contrary rule be applied to defendant without violating the due process and ex post facto clauses of the United States Constitution?
A. Reconsideration of the Neal Footnote
(1)
We conclude that, in addition to being dictum, the Neal footnote is an incorrect statement of law, unsupported by the authority it cites. The cases relied upon do not stand for the proposition that the “basic principle” enunciated in section 654 “preclude[s] double punishment when an act gives rise to more than one violation of the same Penal Code section . . . .” (Neal, supra, 55 Cal.2d 11, 18, fn 1.) Three of the four cases cited in the Neal footnote involved multiple convictions that were held to be improper without any reliance on section 654.9 Those three cases, discussed below, are People v. Clemett, supra, 208 Cal. 142 (Clemett); People v. Nor Woods, supra, 37 Cal.2d 584 (Nor Woods); and People v. Roberts, supra, 40 Cal.2d 483 (Roberts). By contrast, there is no suggestion here that multiple convictions were improper. Defendant was found hiding under the stairs with seven guns. He was convicted of seven counts of being a felon in possession of a firearm. (Former § 12021, subd. (a)(1).) Former section 12001, subdivision (k), provided that the possession of “each firearm . . . shall constitute a distinct and separate offense . . .” under, among other provisions, section 12021.
Applying this line of authority, the Clemett court reversed the possession conviction, reasoning that “the legislature prescribed but one punishment for a violation of said act . . . .” (Clemett, supra, 208 Cal. at p. 147.) “Clearly the possession and control period is covered by the period during which the defendant operated said still. The defendant may have had a still in his possession or under his control without operating the same, but he could not have operated it without having it under his control and in his constructive possession.” (Id. at p. 146.)
In Nor Woods, supra, 37 Cal.2d 584, a used car dealer was convicted of two counts of grand theft for taking both a 1946 Ford and some cash in exchange for a 1949 Ford, then failing to deliver the newer car or to return the trade-in and money. This court reversed one of the convictions. “It is unnecessary to determine under what circumstances the taking of different property from the same person at different times may constitute one or more thefts. [Citation.] In the present case both the car and the money were taken at the same time as part of a single transaction whereby defendant defrauded [the victim] of the purchase price of the 1949 Ford. There was, accordingly,
Roberts, supra, 40 Cal.2d 483, was a prosecution under Health and Safety Code former section 11500, which read: ” ‘Except as otherwise provided in this division, no person shall possess, transport, sell, furnish, administer or give away, or offer to transport, sell, furnish, administer, or give away, or attempt to transport a narcotic except upon the written prescription of a physician . . . .’ ” (Roberts, at p. 486.) The defendant and a confederate were convicted of conspiracy to violate the statute. They were also convicted of violating the statute in three different ways on the same occasion by illegally transporting, selling, and possessing heroin. The court reversed the transportation and possession convictions. “The three acts are charged and adjudged as separate crimes. However, ‘cooperative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.’ (People v. Clemett[, supra], 208 Cal. 142, 144 . . . ; see, also, People v. Knowles (1950), 35 Cal.2d 175, 187 [217 P.2d 1].) The present case [(Roberts)] resembles the Clemett case in that the only possession and transportation of heroin shown were those necessarily incident to its sale. And as in the Clemett case (p. 150 of 208 Cal.) the error can be corrected by this court.” (Roberts, at p. 491.)
While these cases all tangentially refer to punishment, they do so because each held that the defendants were wrongfully convicted of multiple offenses when only a single crime was committed. Naturally, because the convictions failed, any punishment based on them would also be set aside.
The fourth case cited in the Neal footnote is People v. Brown, supra, 49 Cal.2d 577. There the court considered the application of section 654 to one act that violated two different Penal Code provisions. The defendant killed Lucy Sanchez in the course of an unlawful abortion and was convicted of both second degree murder and abortion. Relying on section 654, this court reversed the abortion conviction. “It is manifest from the evidence that defendant committed against Lucy only one criminal act, that is, the insertion of a blunt instrument in combination with the injection of a solution.” (Brown, at p. 590.) People v. Coltrin (1936) 5 Cal.2d 649 [55 P.2d 1161], another abortion/murder case, was overruled insofar as it held, contrary to section 654, that a person could be “twice punished for one act.” (Brown, at p. 593.) Thus, Brown was a straightforward application of section 654‘s language and presaged the holding in Neal.
(2)
Both the language and purpose of section 654 counsel against applying it to bar multiple punishment for violations of the same provision of law.
Nor does the purpose of section 654 support a bar to multiple punishment for multiple violations of the same provision of law. As we have said frequently, the purpose of section 654 is to ensure that a defendant‘s punishment will be commensurate with his culpability. (See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1063 [12 Cal.Rptr.3d 325, 88 P.3d 56] (Oates); Latimer, supra, 5 Cal.4th at p. 1211; People v. Perez (1979) 23 Cal.3d 545, 550–551 [153 Cal.Rptr. 40, 591 P.2d 63] (Perez); Neal, supra, 55 Cal.2d at p. 20.) We have also observed that “[t]he Neal test does not, however, so ensure. A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.” (Latimer, supra, 5 Cal.4th at p. 1211Latimer, discussed above, we have not repudiated the long-standing holding of Neal. However, we here limit, rather than expand, its incongruity by applying section 654 according to its terms, that is, to “[a]n act or omission that is punishable in different ways by different provisions of law.”
In other contexts, we have declined to extend section 654‘s reach and bar multiple punishment under the same provision of law. For example, section 654 does not apply to crimes of violence against multiple victims. (E.g., Oates, supra, 32 Cal.4th at p. 1063.)10 The reason is that ” ‘[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’ ” (Oates, at p. 1063.)
Similarly, we have declined to apply section 654 where the defendant has committed multiple violations of the same provision of law prohibiting sexual assaults. In Harrison, supra, 48 Cal.3d 321, the defendant broke into the victim‘s home and committed three separate acts of digital penetration. After each penetration the victim was able to pull away. Twice the defendant was able to overpower her and penetrate her again. After the third assault she was able to retreat to a bathroom and lock the door. The entire episode lasted seven to 10 minutes. (Id. at pp. 325–326.)
First, the Harrison court found that the defendant was properly convicted of three separate counts of sexual penetration by a foreign object. (Harrison,
The Harrison court rejected the defendant‘s argument that under section 654 he could not receive multiple punishments because his crimes involved identical offenses. The court explained that to apply section 654 in that way “would mean that ‘once a [defendant] has committed one particular sexual crime against a victim he may thereafter with impunity repeat his offense,’ so long as he does not direct attention to another place on the victim‘s body, or significantly delay in between each offense. [Citation.] However, it is defendant‘s intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable.” (Harrison, supra, 48 Cal.3d at pp. 337–338.)
Similarly, a felon who possesses several firearms is more culpable than one who possesses a single weapon. The purpose of “The Dangerous Weapons Control Law,”11 of which former section 12021 was a part, was to protect the public by denying firearms to felons, who are considered more likely to commit crimes with them. (People v. Bell (1989) 49 Cal.3d 502, 544 [262 Cal.Rptr. 1, 778 P.2d 129] (Bell).) The Legislature has made it clear that the magnitude of a felon‘s culpability depends on the number of weapons possessed. As noted, former section 12001, subdivision (k) specified that the possession of “each firearm . . . shall constitute a distinct and separate offense” under, among other provisions, former section 12021.12 An analogy to our observation in Harrison is apt. To apply the section 654 bar to punishment for multiple violations of the weapons possession statute here would mean that once a felon had acquired one firearm ” ‘he may thereafter with impunity’13 acquire as many guns as he wishes, at least as long as he
(3)
Reconsidering the Neal footnote is a departure. Some Court of Appeal decisions have expressly relied on it in applying section 654 to multiple punishment for violations of the same provision of law. (See People v. Davey (2005) 133 Cal.App.4th 384 [34 Cal.Rptr.3d 811] (Davey); People v. Hall (2000) 83 Cal.App.4th 1084 [100 Cal.Rptr.2d 279] (Hall).)
In Davey, supra, 133 Cal.App.4th 384, the Court of Appeal held that under section 654, “a single act of indecent exposure constitutes only one crime for the purpose of sentencing, regardless of the number of people who witness it.” (Davey, at p. 387.) The court further held that “indecent exposure is not a violent crime for the purpose of the multiple-victim exception under section 654 . . . .” (Id. at p. 392.) Citing the Neal footnote, the court said, “Although section 654 by its terms bars only multiple punishment for a single act violating more than one statute, it has long been interpreted also to preclude multiple punishment for more than one violation of a single Penal Code section, if the violations all arise out of a single criminal act.” (Id. at p. 389.)
In Hall, supra, 83 Cal.App.4th 1084, the issue was “whether a single act of exhibiting a firearm in a threatening manner in the immediate presence of several peace officers in violation of
(4)
Defendant contends that if we hold section 654 does not govern multiple punishment for violations of the same provision of law, we may apply the new rule prospectively only. We agree.
The due process clause is a limitation on the powers of the legislature and does not of its own force apply to the judicial branch of government. However, the principle on which the clause is based, that a person has a right to fair warning of the conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the due process clause of the Fourteenth Amendment to the United States Constitution. (Marks v. United States (1977) 430 U.S. 188, 191–192 [51 L.Ed.2d 260, 97 S.Ct. 990]; People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 21 [104 Cal.Rptr.3d 764, 224 P.3d 86]; People v. Morante (1999) 20 Cal.4th 403, 431 [84 Cal.Rptr.2d 665, 975 P.2d 1071].)
Our case most nearly on point is People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27], where the court overruled In re Culbreth (1976) violations of the same statute. The defendant, a registered sex offender, was convicted in Sacramento County for failing to notify authorities there that he had moved to El Dorado County. (Former
While the ex post facto clause bars applying this new rule to defendant, the enactment history of former section 12021, subdivision (a) makes it clear that the Legislature intended that a felon found in possession of several firearms be liable to conviction of and punishment for each of the firearms.
B. Legislative History
Former section 12021, subdivision (a)(1), made it a felony for a convicted felon to possess “any firearm.” As we have explained, the purpose of The Dangerous Weapons Control Law, of which former section 12021, subdivision (a) was a part, is to protect the public by denying firearms to felons, who are considered more likely to commit crimes with them. (Bell, supra, 49 Cal.3d at p. 544.)
The Legislature, in enacting former section 12001, subdivision (k) in 1994, made it clear that the magnitude of a felon‘s culpability depends on the number of weapons he or she possesses. It provided that the possession of “each firearm . . . shall constitute a distinct and separate offense” under, among other provisions, section 12021.
Section 12001, subdivision (k), was enacted in response to People v. Kirk (1989) 211 Cal.App.3d 58 [259 Cal.Rptr. 44]. Kirk construed former section 12020, subdivision (a), which made it a felony to possess “any instrument or weapon of the kind commonly known as a . . . sawed-off shotgun.” (
The Legislature, in repudiating Kirk and specifically providing that possession of each firearm is a separate offense, effectively adopted the rule we announce today. It expressed its clear intention that a felon may be punished separately for each firearm possession count of which he is convicted.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
Kennard, Acting C. J., Baxter, J., Chin, J., Liu, J., and Sepulveda, J.,* concurred.
WERDEGAR, J., Concurring.—In February 2006, police found defendant, a felon, in simultaneous possession of seven firearms. At that time, as now, it was illegal for a felon to possess a firearm. (
As I explain, I agree with the majority that defendant may be separately punished for seven separate crimes. Like the majority, I reach that conclusion because the Legislature specifically amended the Penal Code to provide that
*Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.
¹ All further statutory references are to the Penal Code unless otherwise stated.
Former section 12021 includes no express language referencing section 654, nor does it provide that it applies “notwithstanding any other provision of law” or contain some equivalent language to suggest an exception to section 654‘s prohibition on multiple punishment. But a legislative reaction to an appellate decision involving a different but related weapons law suggests the Legislature intended that felons be separately punished for each weapon they illicitly possess.
In People v. Kirk (1989) 211 Cal.App.3d 58 [259 Cal.Rptr. 44], the defendant was convicted of possessing a sawed-off shotgun and a sawed-off rifle in violation of former section 12020, subdivision (a).² The facts indicated his possession of the two weapons was simultaneous: police entered the defendant‘s home in response to a report of a fight involving gunshots “and found a sawed-off shotgun on the living room couch and a sawed-off rifle in a closet in the bedroom.” (Kirk, at p. 60.) The Kirk court explained that “[t]he principal question is whether defendant can be convicted of two violations of former section 12020 where he possessed two sawed-off shotguns at the same time and place.” (Id. at p. 61.) Finding it irrelevant that the weapons were of different types and observing that no evidence showed they were possessed at different places or different times (ibid.), the Kirk court focused on the word “any” in the statute to conclude the defendant was “entitled to the benefit of the statutory ambiguity“³ (Kirk, at p. 65), that the possession of two illegal firearms constituted but one punishable act, and that section 654 barred
² At the time the defendant in Kirk committed his crime, former section 12020, subdivision (a) made it a felony for “[a]ny person in this state” to possess “any short-barreled shotgun” or “any short-barreled rifle.” (
³ “We have no doubt the Legislature could, if it wanted to, make criminal and subject to separate punishment the possession of each and every sawed-off shotgun found at the same time and place. [Citation.] The question is whether it did so by outlawing the possession of ‘any instrument or weapon of the kind commonly known as a . . . sawed-off shotgun . . . [.]’ (Former § 12020, subd. (a), [second] italics added.)” (People v. Kirk, supra, 211 Cal.App.3d at p. 62, first italics added.) After reviewing analogous federal law, the Kirk court concluded that “former section 12020, subdivision (a) is facially ambiguous. As noted, the statute is directed at ‘Any person . . . who . . . possesses . . . any instrument or weapon . . . .’ (Italics added.) By its use of the term ‘any’ rather than ‘a,’ the statute does not necessarily define the unit of
In response to People v. Kirk, supra, 211 Cal.App.3d 58, the Legislature amended former section 12001 to clarify that each illegal firearm was the basis of a separate crime. “In 1994, specifically in response to Kirk, the Legislature amended section 12001 by adding new subdivision[] (k) . . . (
At the time defendant was arrested in 2006, former section 12021, subdivision (a)(1) provided: “Any person who has been convicted of a felony . . . who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (
I agree with the majority that it does. By adding subdivision (k) to former section 12001 specifically to overrule People v. Kirk, supra, 211 Cal.App.3d 58, the Legislature not only made clear that multiple convictions were permissible, it also necessarily implied that multiple sentences were also authorized. This is so because no plausible reason exists to allow for multiple convictions if the offender‘s aggregate sentence were to remain the same. “[W]e cannot assume our Legislature engaged in an idle act or enacted a possession in singular terms” (Kirk, at p. 65), and that “[i]n the circumstances, defendant is entitled to the benefit of the statutory ambiguity” (ibid.).
Inferring an exception to section 654 from the addition of subdivision (k) to former section 12001 suffices to resolve the case before us. It is thus unnecessary to address the continued vitality of the Neal dictum, which found section 654 applicable to violations of the same statute. (Neal v. State of California, supra, 55 Cal.2d at p. 18, fn. 1.) Although I do not join the majority‘s discussion concerning Neal, I concur in the balance of the majority opinion finding section 654 inapplicable here.