*1 Dist. Mar. No. 14911.Third 1987.] [Crim. Respondent, PEOPLE,
THE Plaintiff and Appellant. LOGAN, Defendant
DeWAYNE
[Opinion partial publication.*] certified Court, Reporter of Decisions is Rules of of the California *Pursuant to Rule 976.1 Disposition, exception opinion, including portions with the publish of this
directed to all part II. *3 Counsel DeWayne
Phillip Bronson, Appeal, and appointment the Court of I. under pro. per., Appellant. Logan, in and for Defendant General, McMurray D. Kamp, Attorney Van Edmund John K. de General, Rouzan, Attorneys for Plaintiff Deputy Hill Wanda Respondent.
Opinion with a DeWayne Logan of assault
SIMS, defendant A jury J. convicted that in the commis weapon Code, (a))1and found (Pen. subd. § 12022.5) and inflicted (§ personally used a firearm offense he sion of that indicated. 1Statutory Penal Code unless otherwise references to the are great bodily injury 12022.7). jury (§ posses- also convicted defendant of sion an (§ 12021). ex-felon of firearm The trial court found defendant meaning habitual criminal within section 667.7 and him sentenced imprisonment parole precluded to life with years. challenges
Defendant makes a series of his current convictions which reject unpublished we portion opinion. published an this portion, In this we improperly adjudicated consider defendant’s contention he was habitual criminal meaning within the section 667.7. For reasons which follow, we conclude this contention has merit. *4 Background
Procedural and Facts Relevant to the Habitual Criminal
Finding pertinent here, provides As punishment section 667.7 for increased for prior defendants who separate prison have served two or more terms for certain offenses and who felony are then convicted a in which they of have great bodily injury 12022.7).2 inflicted (§ provides: “Any person felony person 2Section 667.7 convicted of a in which such inflicted great bodily injury provided 12022.7, personally as in likely Section or used force which was produce great bodily injury, separate prison prior who has two served or more terms as murder; murder, in attempted voluntary defined the of manslaughter; Section 667.5 for crime mayhem; rape by force, violence, bodily injury or fear of immediate and on unlawful person; copulation force, violence, duress, victim by or another oral or menace fear of imme injury bodily person; sodomy by force, diate and violence, unlawful on or the victim another duress, bodily injury menace or fear of immediate unlawful on the victim or another person; age years force, violence, by duress, lewd on a acts child under the of 14 of use menace bodily injury person; or fear of immediate and unlawful on victim or another a violation accomplished (a) against of by subdivision of where Section 289 the act is will victim’s force, violence, duress, menace, bodily means of immediate injury or fear of and unlawful person; ransom, extortion, on kidnapping robbery; the victim robbery or another for or involving deadly weapon; murder; of use a force or assault with to commit intent assault weapon; likely produce great bodily with injury; a assault with force a assault with rape, sodomy, copulation, penetration vaginal opening intent to commit oral of a or anal in 289, structure; escape of child; violation Section lewd or and lascivious acts aon arson of a attempted escape by or (a) inmate with an force or violence in violation of subdivision 4530, 4532; exploding Section ofor Section a device with to murder violation of intent 12308; exploding bodily injury Section a destructive device which causes violation of 12309, mayhem great bodily injury 12310; exploding Section or or in violation of Section intimidate, injure, terrify, 12303.3; destructive device with intent or in violation of Section any felony person great bodily injury provided 12022.7; in which such inflicted as in Section any felony punishable imprisonment parole by possibility or death life with or without the punished is a habitual offender shall be as follows: “(1) person separate prison imprison- prior punished by Such who served two terms shall be prison eligible parole years, ment in the life shall state for for release on for 20 pursuant underlying conviction, or the term determined the court to Section for the
including any applicable Chapter (commencing 1170) enhancement under 4.5 with Section 2, period prescribed by 3046, any greatest. 7 of Title Part Section 190 or whichever is provisions (commencing 2930) Chapter The of Article 2.5 with Section 7 of 1 of Title Part great felony in which he inflicted jury defendant of convicted depended on thus habitual criminal status bodily injury. Defendant’s separate prison prior terms described he had two whether served prison arising separate term out alleged one The information statute. 13, 1975, where it was found robbery January on conviction for defendant’s separate 12022.5). personally (§ a firearm The second had used defendant for alleged was to have arisen out of defendant’s conviction prison term 18, 1980, was armed with robbery where it was found defendant on June (a)). subd. (§ firearm requisite question whether had served the defendant following discharge jury. in a court trial adjudicated was terms in the form of defendant’s the court came evidence received alleged in terms the information. admissions that he had served terms; prior his he merely admitted the fact of service Defendant expressly appeal) that the terms met (and reserved refused admit statutory (See criminal status under section 667.7. criteria for habitual v. Calio . People presented no 1162].) The additional evidence *5 trial court that defendant was a habitual criminal within the The found meaning of section 667.7.
Discussion I adjudication must be reversed because he habitual criminal Defendant’s prison robbery prior separate involving has not two terms the for suffered weapon. deadly use or the use a of of force prison separate a contends his admission that he served Defendant (a)) robbery (§ a in which was armed with a firearm subd. term for he prison pursuant section, any imposed apply a to term in state this shall to reduce minimum 3 prior parole person be on to such time. but such shall not otherwise released prior person felony separate “(2) Any of a who has served three or more convicted such specified terms, 667.5, (a) prison for the crimes in subdivision shall be as defined in Section prison possibility parole. by imprisonment punished for the of in the state life without punishment imprison- prevent imposition “(b) of of the death or This section shall not the parole. prior prison possibility term shall be used for this deter- ment life without the No period years person 10 in which remained free to a the mination which was served felony prison custody in commission of an offense which results a conviction. both Department Authority section, to of the Youth after convic- in a commitment As used this imposed prior prison felony under this section term. term tion for a shall constitute a accusatory imposed only alleged in under this section be if the terms are shall open court, by jury by to pleading, the defendant in or found be true and either admitted by plea guilty guilt guilt nolo trying by where is established a or the court the issue sitting jury.” without a trial the court contendere requisite is insufficient to one two establish terms under section follow, 667.7. For the agree. reasons we provides pertinent part “Any person Section 667.7 in that prior separate prison ... who has two or served more as terms defined robbery crime involving Section 667.5 for the of... the use or a offorce offender____”3 weapon; ... is a habitual (Italics added.) that, in adjudged Defendant contends order to a habitual crim meaning 667.7, People inal within the of section had to show that both prior prison terms were for involving deadly weapon.4 robberies the use aof by suggesting they counter need both show that robberies involving... deadly weapon.” (Italics added.) Thus, were “robber[ies] proof deadly weapon contend that defendant was armed with a is robbery to weapon.” sufficient show that the ... a deadly “involv[ed] reject People’s We must construction variety of section 667.7 for a People’s interpretation reasons. The first is violates settled governing interpretation phrases rules of modifying statutes. “It is ‘ general statutory rule of “modifying phrases ... that are to be construction applied to the immediately preceding words them and are not be construed ” extending phrases.” as (People Corey (1978) more remote v. [Citation.].’ Cal.Rptr. 644], quoting Watkins Cal.App.2d 397, Real Estate Commissioner 399 [6 191].) weapon” preceded “deadly closely by term is more the term “involving.” Thus, “use” than the term the statute should be construed weapon” “deadly refer the “use” of a any “involving” and not to case *6 “deadly weapon.” a People’s applies to all contention that section 667.7 robberies
“involving deadly weapon” ... a also runs afoul of the venerable rule that 1, must (People (1982) statutes be construed in v. Black 32 Cal. context. 3d 454, Cal.Rptr. Comp. 104]; Moyer Appeals 5 648 P.2d v. Workmen’s [184 222, (1973) Cal.Rptr. 144, Bd. 10 1224].) Cal.3d 230-231 514 P.2d [110 provides penalties Section 667.7 that its severe a shall attach to list of having part offenses in common an danger enhanced level of on perpetrator. Thus, accomplished by most of the listed offenses must party proving 3Section 667.7 is as to which has the has silent burden that defendant prior prison bring Implicitly, him suffered terms sufficient to within the terms of statute. proof required People burden, prem where on the is issue have the as with enhancements (See 457, People Coffey 204, Cal.Rptr. (1967) ised on convictions. v. Cal.2d 67 217 [60 People 15]; (1953) 536, 523].) 430 P.2d v. Morton 41 Cal.2d 539 P.2d [261 prior robbery force; thus, do 4The not contend either we involved use of do provision “robbery involving section consider 667.Ts on the use of force.”
605 duress, fear, cause death violence, menace, must cause orbe intended to or this People’s proposed construction would violate bodily injury. The great deadly of a statutory mere “involvement” scheme because coherent dangerous- necessary no connotation of weapon its use has divorced from ness. counterparts, statutory being with its an enhance
Besides out of context deadly weapon” potentially be of “robbery involving a would ... ment example, obviously sets of facts. For application to unintended unlimited weapons deadly literally cases where apply an would such enhancement robbery accomplished by are in a as knives or bows and arrows stolen such why Legislature no would alone. We can think of reason means fear penalties 667.7 to attach such have intended serious section obligated way is statutes This court construe circumstances. policy absurdity. (People will to a rather than to mischief or lead wise Cal.Rptr. 771, 111].) 703 (1985) 39 P.2d v. Aston Cal.3d 492 [216 Finally, reasonably susceptible which of two construc language when is penal ordinarily in a law that construction is more favor tions is used adopted. (Peoplev. Garfield(1985) 40 Cal.3d able to the offender will be Cal.Rptr. 196, 258]; Superior (1983) v. 707 P.2d Carlos Court 200 [219 Cal.Rptr. 79, 862]; see Reed Cal.3d 672 P.2d v. [197 plausible Cal.App.3d 149, 153 169].) construc one [185 defendant, it 667.7 the one most favorable to is that refers tion section weapon. adopt deadly We thus this involving to robberies the use of (Ibid.) construction. applies pertinent provision 667.7
We therefore hold the of section involving robberies the use terms served for weapon. expressly refrain from We have no occasion to consider—and we deciding—whether personal use the defendant or “use” refers People Piper (1986) 42 (But whether it includes see use others. Cal.Rptr. 125, 899].) is, question Does it connote more next what is meant “use”? being hold it does. *7 merely than “armed”? We apply meaning term “use” we considering of the In
“ construed after the courts have ‘well-recognized of construction that rule word, legislature expression, and the subse any particular meaning of connection, in same exact words quently to use these undertakes precise and tech it them in the irresistible that used presumption is almost ’’ placed upon (In re Jeanice them the courts.’ been nical sense had 455, quoting 1087], P.2d 216 617 (1980) D. [168 Long City Payne (1935) Beach v. 305]; 3 Cal.2d see [44 (1985) Cal.Rptr. 57, v. Weidert 39 Cal.3d 845-846 705 P.2d [218 380].)
Before the enactment (Stats. 1981, of section 667.7 in 1981 ch. 1108) it was established that in the context sentence enhancements for weapons something the term “use” being connoted more than armed. In Cal.Rptr. 776, Chambers Cal.3d 666 498 P.2d 1024] Supreme “By our employing Court noted that the term ‘uses’ instead of Legislature ‘while armed’ requires something section more [in 12022.5] merely being (P. than 672.) explained armed.” The Chambers court “ means, among things, carry purpose ‘Use’ other ‘to out a action means of,’ process,’ to ‘make instrumental to an end or ‘apply advantage.’ and to {Ibid.) By employing the term “use” in section 667.7 [Citation.]” weapons context, Legislature presumed enhancement is to have used it previously the sense it had been meaning understood—as “more than D., merely being (Ibid.; supra, p. armed.” Jeanice 216.) 28 Cal.3d at question only evidence on the robbery whether deadly weapon involved the use of a consisted of defendant’s admission that was he armed. This is evidence insubstantial as a matter law to show use weapon. prison of a Consequently, the term attributable to the 1980 robbery may purposes counted for of habitual criminal status under requires proof specified terms, section 667.7. Since the statute of two proved, one was erroneously imposed. habitual criminal status was We must therefore finding. reverse the criminal habitual
II*
Disposition judgment of conviction finding is affirmed. The of habitual offender previously imposed status is reversed. The sentence is vacated and the cause is remanded to the trial court.
Regan, J., Acting P. concurred. EVANS, judgment reasoning J. I concurin the and the in both the unpublished published portions opinion. *8 ante, page footnote 599.
*See prior prison People to establish the proof offered the or lack thereof 667.7, for habitual section enumerated in Penal Code terms for crimes was enhancements, The defendant compels my concurrence. offender robbery, “while for simply sentence to admit his allowed People offense, offer to did the armed,” no as nor and admitted more to estab- allegation. the chosen the armed Had more with reference to it during robbery, the firearm the presence lish the circumstances by the Cali- described category of circumstances may well have fallen into the Supreme Court Chambers fornia purposes for 1024], and would have sufficed 498 P.2d Chambers, stated, “Although In the court also
habitual offender statute. use, something potential for there more than a bare use of a firearm connotes produces which actually harm but conduct need be not conduct aiding display of a firearm produces a fear of harm or force means means, among other specified felonies. ‘Use’ of one of the commission of,’ instrumental things, carry purpose by means to ‘make ‘to out a or action ‘apply advantage.’ obvious process,’ to an end or [Citation.] speci- in the commission of the legislative to deter the use of firearms intent mine.) broadly (P. italics requires be construed” fied felonies that ‘uses’ i.e., involved, “broadly In the terms “while armed” order to construe” presence uses,” surrounding “personally the circumstances instance, use, established; firearm, in this absent an admission of must be proof to invoke habitual offender enhancement was sufficient must be aside. therefore set separately say
I I trial court write that would remand the matter to the permit of the circumstances proceedings the establishment further purposes terms for allegation involved in one of the armed possession possible; if if then indicate a sentencing, the circumstances impose enhancement. something potential for use” to more than a “bare standard, for the habitual proof If the enhancement does not meet that respects, majority In I concur in the criminal status must stricken. all other opinion. Supreme was denied June
Appellant’s petition for review the Court 1987.