THE PEOPLE, Plaintiff and Respondent, v. JARVONNE FEREDELL JONES, Defendant and Appellant.
No. S179552
Supreme Court of California
June 21, 2012
54 Cal. 4th 350
THE PEOPLE, Plaintiff and Respondent, v. JARVONNE FEREDELL JONES, Defendant and Appellant.
Sandra Uribe and Deanna Lamb, under appointments by the Supreme Court, and Morgan H. Daly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jennevee H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
CHIN, J.-Defendant Jarvonne Feredell Jones, a convicted felon, carried a loaded and concealed firearm. We must decide to what extent, if any, he may be punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. The question requires us to interpret
I. FACTUAL AND PROCEDURAL HISTORY
On May 26, 2008, police searched the car defendant, a convicted felon, was driving and found in a door panel a loaded .38-caliber revolver that was not registered to him. Defendant said he had bought the gun already loaded three days earlier “for protection.” He explained that he had kept the gun at his grandmother‘s house and had “just picked the gun up from there and that‘s why the gun was in the car.”
A jury convicted defendant of three crimes: possession of a firearm by a felon (former
Defendant appealed. He argued that execution of the sentences for counts two and three had to be stayed under
We granted defendant‘s petition for review to decide whether
As relevant,
The trial court imposed concurrent sentences. But doing so is not correct if
When arrested, defendant was carrying, and thus possessing, a single firearm, which seems to be a single physical act. Because defendant is a felon and the gun was both loaded and concealed, that act is made punishable by three different provisions of law, specifically, former
But the question is not so simple. Two four-decade-old decisions-one from the Court of Appeal that is almost directly on point, and an earlier four-to-three decision from this court-strongly support the Court of Appeal‘s conclusion that punishment for at least two of these provisions of law is permissible. (In re Hayes (1969) 70 Cal.2d 604 [75 Cal.Rptr. 790, 451 P.2d 430] (Hayes); People v. Harrison (1969) 1 Cal.App.3d 115 [81 Cal.Rptr. 396] (Harrison).) Harrison‘s holding, and the Court of Appeal‘s in this case, were reasonable in light of Hayes, although, as we will explain, the Hayes rationale would actually permit punishment for all three crimes, a conclusion that would run afoul of more recent Court of Appeal decisions.
As the Court of Appeal explained, cases have held that
But the Court of Appeal also followed an earlier decision that permitted separate punishment for (1) possession of a concealable firearm by a felon and (2) possessing a loaded firearm, even though both crimes involved the same firearm. (Harrison, supra, 1 Cal.App.3d 115.) The Harrison court explained that the “two statutes strike at different things. One is the hazard of permitting ex-felons to have concealable firearms, loaded or unloaded; the risk to public safety derives from the type of person involved. The other strikes at the hazard arising when any person carries a loaded firearm in public. Here, the mere fact the weapon is loaded is hazardous, irrespective of the person . . . carrying it. [¶] The ‘intent or objective’ underlying the criminal conduct is not single, but several, and thus does not meet another of the tests employed to determine if
As did the Court of Appeal, we could follow all of these cases and announce that when the defendant is convicted of multiple crimes for
Harrison, supra, 1 Cal.App.3d 115, relied heavily on Hayes, supra, 70 Cal.2d 604. In Hayes, the defendant drove while intoxicated and while possessing an invalid license. In so doing, he violated two different penal statutes: (1) driving while intoxicated and (2) driving with an invalid license. This court, by a four-to-three vote, held that
Chief Justice Traynor dissented. He relied heavily on
The rationale of Hayes, supra, 70 Cal.2d 604, would permit multiple punishment in many cases when a single physical act is made punishable by different provisions of law. Different provisions of law punishing the same physical act-for example, driving while intoxicated and on an expired license, or a felon‘s carrying a loaded and concealed firearm-are generally directed at distinct societal evils. It might make sense to punish these distinct evils separately, and a criminal justice system could logically and reasonably do so. But doing so would be contrary to
In this case, for example, Hayes‘s rationale would seem to permit punishment for all three of defendant‘s crimes. The act of firearm possession, by itself, is innocent. Thus, under Hayes, we would have to consider the unlawful components of that act, i.e., defendant was a felon, the firearm was loaded, and the firearm was concealed. To adapt Hayes‘s rationale to this case, the fact that these acts “were committed simultaneously and that they share in common the neutral noncriminal act of [gun possession] does not render [defendant‘s] punishment for [all three] crimes in conflict with
Indeed, Hayes itself comes very close to saying that punishment for these precise crimes is permissible. It gives an example of how its analysis would work in a different situation: “Similarly, for example, if an individual went for a walk in possession of a loaded gun while he was intoxicated and unclothed, he would by the single neutral act of walking-or, more accurately, being in a ‘public place‘-simultaneously violate three separate and unrelated statutes. (
The more recent Court of Appeal cases have generally ignored Hayes, supra, 70 Cal.2d 604, and many of their results limiting multiple punishment seem inconsistent with its reasoning. The four cases discussed above that the Court of Appeal cited and distinguished make no effort to reconcile their holdings with Hayes. (People v. Hurtado, supra, 47 Cal.App.4th 805; In re Joseph G., supra, 32 Cal.App.4th 1735; People v. Scheidt, supra, 231 Cal.App.3d 162; People v. Perry, supra, 42 Cal.App.3d 451.) None of these cases cites Hayes. None explains why multiple punishment should be prohibited for possessing an inherently unlawful firearm but not for possessing a firearm in an unlawful way, or why the latter may only be punished once even if the possession was unlawful in more than one way.
We believe the current state of the law is untenable. The more recent Court of Appeal cases discussed above are mutually consistent and have reached results that we believe are more consistent with
We must also decide what to do with Hayes, supra, 70 Cal.2d 604. Its rationale is dubious and overbroad. Over the years, it has led to inconsistent and unpredictable results. Numerous cases, generally more recent ones, have found a
Hayes, supra, 70 Cal.2d 604, has been followed on occasion, including at least once by this court. In In re Michael B. (1980) 28 Cal.3d 548, 556-557 [169 Cal.Rptr. 723, 620 P.2d 173], this court invoked Hayes to permit
In People v. Correa (2012) 54 Cal.4th 331 [142 Cal.Rptr.3d 546, 278 P.3d 809], also decided today, we are disapproving language in one of our cases to bring our
We recognize that what is a single physical act might not always be easy to ascertain. In some situations, physical acts might be simultaneous yet separate for purposes of
The record establishes that the jury convicted defendant of each crime due to his being caught with the gun in the car on May 26, 2008, not due to any antecedent possession. The amended information alleged that defendant committed all three crimes on or about May 26, 2008, the day he was arrested, and the verdicts all found defendant guilty as charged. The prosecutor‘s entire jury argument based defendant‘s guilt on his possessing the gun when arrested and not earlier. He began his argument by stating that the evidence showed “that on the date in question Mr. Jones possessed the firearm in question. And that‘s why we‘ve got him charged with being a felon in possession of a firearm, possessing a concealed firearm, possessing a loaded firearm.” Later, he explained to the jury that there were “three different counts for the same exact conduct.” Thus, defendant‘s guilt on all three charges was premised solely on his having the gun in his car when arrested on May 26, 2008, not on any different acts. We express no opinion on what the outcome might be under other facts.
Additionally, former
The separate opinions in this case agree with the outcome here and with our overruling of Hayes, supra, 70 Cal.2d 604, and disapproving of Harrison, supra, 1 Cal.App.3d 115, both of which had found multiple acts in what were actually single-act cases. But, instead of finding a single act, they would instead rely on a test generally applied when there has been a course of conduct rather than a single criminal act, namely, the “intent and objective” test created in Neal v. State of California, supra, 55 Cal.2d 11. (See generally People v. Latimer (1993) 5 Cal.4th 1203, 1207-1212 [23 Cal.Rptr.2d 144, 858 P.2d 611].) They argue that because defendant told the police he possessed the gun for protection, and the evidence showed no other intent or objective, we should find a single objective that may be punished but once.
It might make sense to punish more severely a firearm possession that violates multiple penal provisions than a firearm possession that violates only one penal provision. Any time it wishes, the Legislature can change the law and permit multiple punishment in a situation like this. But we must interpret the statutes as they exist. Because defendant‘s convictions were based on a single act,
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion.
Kennard, Acting C. J., Baxter, J., Corrigan, J., and Sepulveda, J.,* concurred.
WERDEGAR, J., Concurring.-Although I agree with the majority‘s result, I write separately to explain my view of the correct approach to applying
The majority concludes that pursuant to
*Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The majority‘s failure to rely on Neal, supra, 55 Cal.2d 11, is as puzzling as it is mischievous. The Neal intent-and-objective test has been the law for over 50 years and, as Justice Liu explains, was questioned but ultimately endorsed by this court in People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611]. (See id. at p. 1216 [“[A]t this late date, any changes must be made by the Legislature, which obviously has the authority to modify the rule any time it chooses.“]; see also People v. Britt (2004) 32 Cal.4th 944, 952 [12 Cal.Rptr.3d 66, 87 P.3d 812] [noting our criticism in Latimer].) Despite this court‘s invitation to the Legislature to reexamine the statute, the Legislature has neither abrogated nor amended it. Under the circumstances, we should find the Legislature has acquiesced in the Neal test and simply apply it here. By failing to do so, the majority creates uncertainty where none previously existed.
I.
More than a century old and deceptively simple in its terms,2
Finally, this court in a divided opinion recently decided People v. Mesa (2012) 54 Cal.4th 191 [142 Cal.Rptr.3d 2], in which we held that
Over the years, we have attempted to bring certainty to the application of
These interpretations of
Indeed, in seeking to bring clarity to the statute, we have come full circle. In this case, for example, we overrule one of our earlier decisions on the subject, In re Hayes (1969) 70 Cal.2d 604 [75 Cal.Rptr. 790, 451 P.2d 430], which held a defendant who drove while intoxicated and with a suspended license committed two, separately punishable acts. (Maj. opn., ante, at p. 357.) And in People v. Correa, supra, 54 Cal.4th 331, 334, the majority disapproves the venerable and long-followed interpretation of
Although, as noted, this court has on a number of occasions urged the Legislature to intervene and clarify the law,4 with but one exception not applicable here5 the Legislature has not enacted any substantive modification of
That the Legislature has not acted to clarify the applicability of
The restriction on multiple punishment for the same act or omission is statutory only, and the Legislature-short of constitutional limits imposed by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution-can freely modify or alter the scope of
Yet the Legislature has on some occasions made its intent clear. For example,
The Legislature has also fashioned penal laws that expressly exempt their operation from
In addition to these instances of an express mention of the applicability vel non of
Nor was People v. Benson the only case to find an implied exception to
Even where a sentencing statute does not say it applies “notwithstanding any other provision of law,” or that a sentence should be imposed “in addition to any other punishment authorized by law,” or that a “full, separate, and consecutive term may be imposed,” the Legislature sometimes specifies in other ways that more than one punishment is permissible for the same act. For example,
Against this background and also relevant to the application of
The punishments prescribed for various criminal activities have been on an upward spiral for many years. In the last 34 years (that is, since the advent of the determinate sentencing law),9 base terms for many felonies have doubled or even tripled. In 1978, the punishment for all types of first degree robbery was two, three or four years. (Former
Not only has the Legislature increased the base sentences for crimes, it has enacted enhancements such as the “10-20-life law” (
I mention these sentencing changes not to comment on their wisdom or appropriateness; short of constitutional limits, the setting of criminal penalties is for the Legislature and not the judiciary. But the advent of such increased sentences is relevant to the concern of
III.
Considering the many times the Legislature has expressly or impliedly provided that
With these caveats in mind, I concur with the majority‘s result here that defendant Jarvonne Feredell Jones may be punished only once for his possession of a loaded firearm.
Liu, J., concurred.
LIU, J., Concurring.-I agree with the court that
I prefer that we decide today‘s case on the basis of precedent-imperfect precedent, but precedent nonetheless. In situations where it is debatable whether separate crimes arise from a single physical act, we have determined the applicability of
I.
Some
Thus, for a single act of driving, a defendant may be punished only once for driving under the influence (
As the court acknowledges, however, “what is a single physical act might not always be easy to ascertain.” (Maj. opn., ante, at p. 358.) This is such a case. Police found a concealed and loaded firearm in the car that defendant, a convicted felon, was driving. He was convicted under three separate statutes for possession of a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm, respectively. The court concludes that this case involves a single act and on that basis holds that “a single possession or carrying of a single firearm on a single occasion may be punished only once under
It is instructive to compare the reasoning in People v. Coltrin (1936) 5 Cal.2d 649 [55 P.2d 1161] with the reasoning of People v. Brown (1958) 49 Cal.2d 577 [320 P.2d 5] (Brown), which overruled Coltrin. This court held that the defendant in Coltrin could be punished both for performing an unlawful abortion and for murder when the defendant performed an abortion on a 16-year-old girl that resulted in her death. The court reasoned that “[t]he act of committing an abortion and the act of killing a person while attempting to do this are not merely the same act made punishable in different ways. . . . [A]s a practical matter it cannot be said that the two charges involve but one act. The act of committing an abortion may be done without causing the death of the party operated upon. The act which causes the death of the same person is usually another act, careless or otherwise, which, while it may be committed in connection with the first and about the same time, involves a further and additional element.‘” (Coltrin, 5 Cal.2d at p. 661.)
Over two decades later, we reached the opposite conclusion in Brown, supra, 49 Cal.2d 577, on similar facts. Overruling Coltrin, we reasoned that when the defendant performed an abortion that resulted in the death of the victim, “[i]t is artificial to say that the act which caused death in the Coltrin case, and the act which caused death in the present case, was another act than that which constituted the abortion.” (Brown, at p. 593.) The Coltrin court reasonably concluded that the act of committing an abortion and the act of murdering the victim in the process are separate acts. The Brown court reached the equally reasonable conclusion that the defendant committed only a single act. These cases illustrate that asking whether separate crimes involve “a single physical act” (maj. opn., ante, at p. 358) is not a very illuminating inquiry where it is reasonably arguable that the crimes involved more than one act.
Another complication of the court‘s approach is that it seems to suggest different results depending on how a prosecutor chooses to draft the accusatory pleading. In this case, the Attorney General argues that separate acts occurred because defendant told the police he had obtained the gun three days before it was discovered in the car and had kept it at his grandmother‘s house. The court rejects this argument on the ground that the accusatory
To be sure,
II.
Where reasonable minds can differ on whether multiple crimes involve a single act, we have applied the “intent and objective” test set forth in Neal, supra, 55 Cal.2d at page 19: “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of
We have applied the Neal test to bar multiple punishment in cases involving multiple acts united by a single common objective. (See, e.g., People v. Britt (2004) 32 Cal.4th 944, 953 [12 Cal.Rptr.3d 66, 87 P.3d 812] (Britt) [sex offender‘s failure to inform former county of new address and separate failure to register in new county “achiev[ed] the common end of avoiding police surveillance“]; Latimer, supra, 5 Cal.4th at p. 1216 [“Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes.“]; People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905] [kidnapping and robbery united by a “single intent and
Because a well-developed body of precedent has applied Neal to cases that unquestionably involve multiple acts, it follows that the Neal test is the approach best supported by our case law for resolving cases that arguably involve multiple acts. The Neal test readily resolves the instant case: Defendant possessed and carried a loaded and concealed weapon ” ‘for protection’ ” (maj. opn., ante, at p. 352), and no evidence suggests any other purpose. Because his three crimes shared a common intent and objective,
The Neal test has not been without controversy, and in 1993, the court in Latimer expressly considered whether to overrule it. The court opined that Neal does not always ensure commensurability between punishment and culpability: “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. 1211.) The defendant in Latimer kidnapped the victim, drove her to the desert, and raped her. The court said “[t]he kidnapping was a completely separate crime; it should be separately punishable.” (Ibid.) But despite this concern, the court undertook an extended discussion of stare decisis and declined to overrule Neal. Instead, the court unanimously reaffirmed Neal on the ground that “[t]he Legislature has enacted substantial legislation reflecting its acceptance of the Neal rule.” (Id. at p. 1214; see id. at p. 1216 [“The Neal rule . . . has influenced so much subsequent legislation that stare decisis mandates adherence to it.“]; see also id. at p. 1217 (conc. opn. of Mosk, J.) [“I do not join in the criticism of Neal . . . .“].) Given the court‘s unanimity in reaffirming the Neal test as well as our application of Neal to prohibit multiple punishment in Latimer (id. at p. 1216) and again as recently as 2004 (see Britt, supra, 32 Cal.4th at p. 953), the “intent and objective” test is well settled in our jurisprudence.
The Neal test requires courts to apply the appropriate level of specificity or generality in identifying the defendant‘s intent and objective. In Britt, where a convicted sex offender moved from one county to another without informing either county and thereby committed two crimes, we said that “finding separate objectives here-to mislead or conceal information the law enforcement agency in each county-parses the objectives too finely. . . . Here the objective-avoiding police surveillance-was achieved just once, but only by
As these cases show, the application of Neal‘s “intent and objective” test is not algorithmic. But this court has acknowledged that “[b]ecause of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which directs the proper application of
In this case, the Neal test avoids the conceptual difficulty of determining whether one or more physical acts were involved and provides more guidance to courts and prosecutors than the court‘s approach. Under Neal, it does not matter whether Jones picked up the gun three days earlier or possessed the firearm earlier that day. It does not matter whether he loaded or concealed the gun before his car was stopped. And it does not matter-in future cases with identical facts-whether the prosecutor charges the defendant with antecedent
Werdegar, J., concurred.