THE PEOPLE, Plaintiff and Respondent, v. AARON PATRICK SLOAN, Defendant and Appellant.
No. S132605
Supreme Court of California
Aug. 16, 2007
October 31, 2007
42 Cal. 4th 110
John Doyle and William J. Arzbaecher, under appointments by the Supreme Court, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean, Janet Neeley and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—May enhancement allegations be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses? (See People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595].) Our recent decision in People v. Reed (2006) 38 Cal.4th 1224 [45 Cal.Rptr.3d 353, 137 P.3d 184] (Reed), filed after the Court of Appeal decided this case, effectively answers the question in the negative. Reed held that “[c]ourts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.”
The Court of Appeal in this matter relied on an additional factor, one not at issue in Reed—the potential for future multiple punishment arising from multiple convictions—in support of its conclusion that the enhancement allegations here in question must be considered in determining whether the rule against multiple convictions based on necessarily included offenses applies. As will be explained, however, neither the ban on multiple punishment found in
We therefore conclude the judgment of the Court of Appeal, which is inconsistent with the rule announced in Reed, must be reversed.
FACTS AND PROCEDURAL BACKGROUND
As a result of a domestic violence incident on May 13, 2001, during which defendant Aaron Patrick Sloan threw his wife to the ground, kicked her, and broke her leg, defendant was charged with and convicted of willful infliction of corporal injury on a spouse resulting in a traumatic condition, with a prior
Defendant was sentenced to prison for the upper term of five years on count I (corporal injury on a spouse with a prior) plus four years for the great bodily injury enhancement under that count, and a consecutive term of eight months (one-third of the middle term) on count IV (dissuading a witness), for an aggregate prison sentence of nine years eight months. Execution of sentence on counts II (aggravated assault with great bodily injury) and III (battery with serious bodily injury) was stayed pursuant to
In a partially published opinion, the Court of Appeal affirmed the convictions under counts I and IV, but vacated the convictions under counts II and III on grounds that they violated the rule against multiple convictions based on necessarily included offenses,
DISCUSSION
Defendant contends that under the rule prohibiting multiple convictions based on necessarily included offenses, also known as the multiple conviction rule, he could not be convicted of assault by means of force likely to produce great bodily injury and battery with serious bodily injury (counts II & III) because each can be viewed as a necessarily included offense2 of willful infliction of corporal injury on a spouse resulting in a traumatic condition (count I) when enhanced with a great bodily injury finding. The Court of Appeal agreed, further concluding that conviction of those offenses along with the charged enhancements violated
Here, the trial court stayed execution of sentence on count II (assault by means of force likely to produce great bodily injury) and count III (battery with serious bodily injury) pursuant to
Reed goes on to explain that “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya, supra, 33 Cal.4th at p. 1034.) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 [79 Cal.Rptr.2d 195, 965 P.2d 713].) [¶] The question whether one offense is necessarily included in another arises in various contexts. A common one is deciding whether a defendant charged with one crime may be convicted of a lesser uncharged crime. A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. (
Defendant argues that by willfully inflicting corporal injury resulting in a traumatic condition on his spouse and personally inflicting great bodily injury in connection with that offense, he necessarily committed the charged offenses of assault by means of force likely to produce great bodily injury and battery with serious bodily injury.3
If the conviction of willful infliction of corporal injury on a spouse resulting in a traumatic condition under
Similarly, “‘[s]erious bodily injury’ is the essential equivalent of ‘great bodily injury’ [citation].” (People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550 [235 Cal.Rptr. 108]; see People v. Corning (1983) 146 Cal.App.3d 83, 90 [194 Cal.Rptr. 27].) Consideration of the great bodily injury enhancement found true under count I would effectively establish the elements of the charged battery with serious bodily injury (see count III), thereby triggering application of the rule against multiple convictions, whereas looking only to the statutory elements of willful infliction of corporal injury on a spouse would not implicate the rule.
The rationale and holding of Reed is made clear in the following paragraphs of that decision: “In People v. Pearson, supra, 42 Cal.3d at page 356, footnote 2, we noted that, ‘while an expanded definition of necessarily included offenses [i.e., employing both the elements test and the accusatory pleading test] may be appropriate in the context of [conviction of an uncharged offense], there appears little reason to enlarge the meaning of the same phrase as it is used in other situations.’ We did not, however, decide the question because the offenses were not included in each other even under the accusatory pleading test. (Ibid.) More recently, we again recognized this question but did not decide it. (People v. Montoya, supra, 33 Cal.4th at pp. 1035–1036.)
“As we noted in People v. Montoya, supra, 33 Cal.4th at page 1035, the Court of Appeal decisions that specifically consider this question have concluded that the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467 [26 Cal.Rptr.2d 610]; People v. Watterson [ (1991)] 234 Cal.App.3d [942,] 947, fn. 15 [286 Cal.Rptr. 13]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165–171 [282 Cal.Rptr. 228].) Now that the question is squarely presented, we agree. In deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in Scheidt, ‘only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ (People v. Scheidt, supra, at pp. 165–166.)
“The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. ‘As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.’ (People v. Lohbauer, supra, 29 Cal.3d at pp. 368–369.) ‘Because a defendant is entitled to notice of the charges, it makes sense to look to the accusatory pleading (as well as the
The Legislature has separately defined the three offenses of which defendant was here charged and convicted—willful infliction of corporal injury on a spouse causing a traumatic condition, assault by means of force likely to produce great bodily injury, and battery with serious bodily injury. As was the case in Reed, “[d]efendant committed each of [the charged] crimes, albeit during the same course of conduct. The Legislature has made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. (
The holding in In re Jose H. (2000) 77 Cal.App.4th 1090 [92 Cal.Rptr.2d 228] (Jose H.), on which the People expressly rely, involved closely analogous facts and is consistent with the conclusions we reached in Reed and reaffirm here. The Jose H. court concluded the juvenile court did not violate the rule against multiple convictions based on necessarily included offenses when it sustained charges of both assault with a deadly or dangerous weapon with force likely to produce great bodily injury, with a great bodily injury enhancement, and battery with serious bodily injury, also with a great bodily injury enhancement. Citing this court‘s holding in Wolcott—that enhancements may not be considered part of an accusatory pleading for purposes of defining and instructing on lesser included offenses (Wolcott, supra, 34 Cal.3d at pp. 96, 100–101)4—the Jose H. court reasoned that the same rule must apply for purposes of the rule against multiple convictions.
The Court of Appeal in this case found that an additional factor—the potential for future multiple punishment—a factor not implicated on the facts of Reed, further supported its conclusion that the convictions under counts II (assault by means of force likely to produce great bodily injury) and III (battery with serious bodily injury) must be vacated under the multiple conviction rule. Although acknowledging that defendant was not being punished for those two convictions in this proceeding as he was for the conviction of willful infliction of corporal injury on a spouse under count I, the court nonetheless reasoned, “Here, although the sentences on counts two and three were stayed under Penal Code section 654, there is a serious potential consequence of multiple convictions. Because of the great bodily injury allegations, each of the offenses is a serious felony and will qualify as a strike in a subsequent prosecution for any felony. (
We disagree that the possibility multiple punishment might result from sentencing in unrelated future criminal proceedings if defendant reoffends upon his release from prison itself furnishes a basis for expanding the multiple conviction rule or undercutting the bright-line test announced in Reed. As regards federal double jeopardy principles, “[t]he Double Jeopardy
Federal law, like California statutory law, clearly recognizes that cumulative punishment may be imposed under two statutes, even where they proscribe the same conduct, if the Legislature has specifically authorized cumulative punishment. (Missouri v. Hunter (1983) 459 U.S. 359, 368–369 [74 L.Ed.2d 535, 103 S.Ct. 673].) Our Legislature has separately defined the three offenses of which defendant was convicted, separately prescribed an enhancement for personal infliction of great bodily injury under circumstances involving domestic violence (
With regard to whether
Moreover, multiple convictions permitted under
Last, defendant argues that under the high court‘s holding in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi), and this court‘s decision in People v. Seel (2004) 34 Cal.4th 535 [21 Cal.Rptr.3d 179, 100 P.3d 870] (Seel), which interpreted and applied Apprendi in the context of the federal double jeopardy clause, enhancements must be considered in connection with the multiple conviction rule. In the companion case of People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre), also filed today, we have rejected the identical argument. (Izaguirre, supra, at pp. 128–129.)
Briefly, in Apprendi, supra, 530 U.S. 466, the high court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The rule of Apprendi is grounded on the reasoning that “[t]he federal Constitution
Here, as in Izaguirre, all of the enhancement allegations in question were submitted to the jury and proved true beyond a reasonable doubt. There is no Fifth or Sixth Amendment violation within the meaning of the high court‘s holding in Apprendi, supra, 530 U.S. 466. Beyond that, Izaguirre explains in detail why the decision in Seel, supra, 34 Cal.4th 535, which interpreted Apprendi‘s holding in the specific context of the federal double jeopardy clause‘s prohibition against a second prosecution for the same offense after acquittal, has no bearing on the claim, raised in Izaguirre and this case, that federal double jeopardy principles require enhancements to be considered when applying the multiple conviction rule to necessarily included offenses. (See Izaguirre, supra, 42 Cal.4th at pp. 132–134.) Neither this case nor Izaguirre involves a second prosecution for the same offense after acquittal. Nothing in the federal double jeopardy clause, Apprendi, or Seel supports the conclusions and holding of the Court of Appeal below.
The expanded multiple conviction rule adopted by the Court of Appeal, which would require consideration of enhancements in applying that rule, contradicts
CONCLUSION
The judgment of the Court of Appeal is reversed, and the matter remanded to that court for further proceedings consistent with the views expressed herein.
George, C. J., Kennard, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
I wrote a concurring and dissenting opinion in Reed that reached the same result as the majority but used different reasoning. I disagreed that the language of the accusatory pleading never should be considered in determining whether a defendant improperly had been convicted of necessarily included offenses. I agreed, however, that the allegations that the defendant in Reed was a felon should not be considered in determining whether multiple convictions were proper because being a felon was not an element of the crimes of carrying a concealed weapon or carrying a loaded weapon in public. (People v. Reed, supra, 38 Cal.4th 1224, 1235 (conc. & dis. opn. of Moreno, J.).) The circumstance that the defendant in Reed was a felon was alleged in the counts charging him with carrying a concealed weapon and carrying a loaded weapon in public in order to permit these crimes to be punished as felonies rather than misdemeanors. (Id. at p. 1234 (conc. & dis. opn. of Moreno, J.).) I thus reached the same result as the majority based in large part upon the rule we announced in People v. Wolcott (1983) 34 Cal.3d 92 [192 Cal.Rptr. 748, 665 P.2d 520] “that allegations of sentencing enhancements should not be considered in applying the accusatory pleading test to determine a trial court‘s sua sponte duty to instruct the jury regarding lesser included offenses.” (People v. Reed, supra, 38 Cal.4th 1224, 1235 (conc. & dis. opn. of Moreno, J.).)
Appellant‘s petition for a rehearing was denied October 31, 2007.