*1 confusion, juror it should.4 I would remand resentencing appropriate instructi

ons. 5 2002 OK CR 15 Appellant, BURLESON,

B.J. and Drew

James SAFFLE

Edmondson, Appellee. CQ-2002-140.

No. Appeals

Court of of Oklahoma. Criminal

March

OPINION CERTIFIED ANSWERING QUESTION OF LAW CHAPEL, Judge: Lucero, T1 The Honorable Carlos F. Pre siding Judge three-judge panel for a Appeals United States Court of for the Tenth Circuit, following question has certified the pursuant to the Revised Uniform Certifica Questions tion of of Law Act:1 August On Oklahoma Court of Appeals Criminal held that "where a vehi cle is used to facilitate the intentional dis charge weapon during trans 'shooting action or event' one count of Using a to Facilitate Vehicle the Intention Discharge al of a Firearm Tit. [Okla. Stat. 652(B)] 21, § appropriate." Locke v. (Okla.Crim.App. 1997). Did the have the statute meaning under Oklahoma law on day petitioner-appellant's crimi violating nal conviction for two counts of this section was affirmed? notes, duty special majority years ago suggest- "A trial court care has 5. As the six jurors' understanding evaluate of the law and punishment ed the standard instructions away any explicit clear difficulties." Hooks v. by defining could be clarified life both with and Johnson, without 928 P.2d at 320. parole. - --, U.S. 122 S.Ct. 151 L.Ed.2d (2001); Angelone, Weeksv. U.S. O.S.Supp.1997, § (2000); 145 L.Ed.2d 727 Bollenbach States, United 66 S.Ct. U.S. L.Ed. 350

151 FACTS States District Court for the United Western accepted District of Oklahoma the recom 16, 1995, February Burleson and 12 On mendation, relief, denied habeas and dis dispute with two other had a four friends certifying the In its missed action.7 order They arranged to meet the men and men. above, question the of stated the law Tenth by house. fight, drove their but instead magistrate's noted Circuit the recommenda approximately five shots at Burleson fired regarding Teague tion v. Lane in error.8 was car; hit from the one shot and the men Teague that new constitutional rules of held conviect- paralyzed one victim. Burleson was violating procedure retroactively of criminal will not be ed of two counts Oklahoma's statute,2 (a) "drive-by" shooting they place and received applied "certain kinds of unless (25) twenty-five year imprison terms of two primary, private beyond individual conduct power law-making the of the criminal author upheld This these convictions ment. Court 2, (b) 1997, unpublished ity proseribe," and sentences are watershed rules appeal summary opinion, and the became procedure "implicat[ing] fun of criminal 1, 1997, 31, July August final 1997.3 On on damental fairness the trial."9 As the State,4 published Locke v. which this Court noted, Tenth Locke Cireuit and this Court's charged that a defendant could be held opinion in unpublished case in Burleson's 652(B) § where there with one count under interpretation volved substantive state "shooting subse was one statute, proce criminal not rule of criminal event". Burleson's post-convmtlon for relief on quent application adopted Teague dure. This has as it Court court, issue was denied the trial and this applies procedure.10 to new rules of criminal by unpub this affirmed that decision Tenth. Court Circuit commented that this 5 3, August 1998. opinion lished on affirming post- order the denial of Court's appeared rely conviction relief on these pétition 13 Burleson's federal for writ of cases, Teague analysis.11 and used This magistrate corpus habeas was referred to a inappropriate. reliance was Burleson magistrate judge. The recommended that claimed, court, he as does before federal deny petition court the district because (1) nonretroactivity principle set forth intervening change that Locke was an of law benefit, from which he should He admitted Teague applying v. Lane6 Locke to barred (2) case; that this had not declared Locke to be decision was Court this Court's governing retroactive.12 Under statute contrary applica an not to or unreasonable application, post-conviction law. The Burleson's he had clearly federal tion of established 652(B). 311-312, Teague, O.S.Supp.1992, § U.S. at 109 S.Ct. at 2. 21 The statute 9. 489 (specifying amended in 1997 the crimes were 1075-76. removing punishment ranges) and felonies and (restoring punishment ranges). 1999 These OK CR 902 P.2d State, 54, 10. Ferrell v. amendments did not affect the substance of the (used analysis Teague to find that 652(B). amend crime set forth in as unconstitutional case which invalidated ment was the law in effect at the time of Burle pro criminal statute was a new rule of criminal son's offense. Teague exceptions); v cedure not within Thomas State, 888 P.2d . State, (Okl.Cr. May 3. Burleson v. No. F-96-447 516 U.S. 116 S.Ct. 133 L.Ed.2d 1997) (not publication). (1995) (cited Teague to rule of hold new procedure, filing on of Bill of Particu criminal CR 1997 OK lars, pending apply collateral did not to cases (Okl.Cr.Au- 5. Burlesonv. No.PC-98-597 review). 3, 1998) (not gust publication). Saffle, 278 F.3d n. 5 11. Burleson U.S. L.Ed.2d 33 (10th Cir.2002). OK CR 12. Walton (W. Saffle, Burleson v. No. CIV-98-1129-L (general that decisions of 716, 718 rule of law 16, 2000). Dist. Okla. June overruling highest prior are court decision 1136, 1141, (10th application specifically de- prospective unless Saffle, 278 8. Burleson v. F.3d effect). Cir.2002). clared to have retroactive grounds not shown for relief.13 shooting. Crimes they if are and distinct are QUESTIONANSWERED long "[I]t at victims. has directed that, jurisprudence part been our where T4 The Tenth has asked this Court Cireuit involved, are even crimes clarify interpretation of the statute *3 to its though part various acts are of the same facilitate prohibiting the use of a vehicle to transaction, they will constitute and discharge (drive-by shoot the of a firearm notes, they at distinct crimes where are directed ques ings). As the Tenth Cireuit this persons. Temporal and distinct Legislature: tion turns on the intent of spatial proximity or the fact that the 'and/or criminalizes a course of whether this statute was, not, identical, weapon was are af used or rather than a discrete act.14 We action 5 not material."1 We have held the double previous Legis that the firm our conclusion jeopardy implicated clause was where more pun impose lature intended to an additional during than the course one offense occurred drive-by persons ishment on who commit contrast, of a transaction.16 In Burle- shootings by allowing prose than more one people a son shot from vehicle at two several multiple vietims. cution where there are rapid in times succession. Drive-byshooting, shootingwith T5 like jurisdictions, interpreting T6 Other similar battery intent to kill or assault and with a provisions, have reached the conclus deadly weapon, indisputably a crime appellate ion.17 As California court re against person. Legislature one intend : marked stop using people ed to from vehicles to aid shooting people, primary purpose proscription in other of the them and stat ute's focus is on behavior which aids punishment is to double insure O.S.1991, (two Through property a scrivener's for stolen in error convictions bought containing where defendant one sack two affirming error, this Court's Order the denial of State, 34, post-conviction mistakenly pistols); relief cited to 22 O.S. v. stolen Watkins 1992 OK CR . 1991, § 1086 (two 141, 855 P.2d 142 convictions for posses sion of controlled substances with intent to dis 1136,1143,(10th Saffle, 14. Burlesonv. 278F.3d types drugs tribute were error where two were . Cir.2002). shipped single package) in Jennings State, 74, v. 1973 OK CR 506 P.2d Ferreira, 465, 17. State v. 69 850 P.2d Wash.App. 931, (no jeopardy 935 double violation where (1993) (persons committing 541, 544 act of vio prosecuted defendant was for two counts of as intending place person lence to more than one in dangerous weapon against sault with a different may multiple fear be convicted of offenses unde statute, victims). and State, See v. 1980 OK CR r the same defendant committed five also Hoffman (no degree requires jeopardy acts second assault which 35, 267, 611 P.2d 269-70 double prosecuted fear); violation where was for defendant specific apprehension intent to create or Williams, acquittal pointing 601, feloniously murder after for People Cal.App.4th v. 14 17 Cal c weapon police (1993) (defendant at a officer the same transa in Rptr.2d subject multiple . 583 to State, tion); 26, Clay v. OK P.2d 1979 CR 593 committing act sentence enhancement for an 509, (no jeopardy double violation where intending per violence to harm one more than charged robbery son, defendant was with fire with likely persons, to or harm several and defen arm, kidnapping, and assault while masked and attempted dant was convicted of two counts of vehicle); crimes were committed different vic by discharging murder a firearm from a State, 1344, tims); Vigil (Wyo. v. 563 P.2d State, Wilson v. 1973 OK CR 1350-54 1977) (where (person committing act of violence intend prosecuted defendant was battery dangerous weapon assault and with a ing person may place to more one in fear be than battery danger attempted offenses, and assault and with a multiple convicted of and defendant weapon, jeopardy ous no double violation where gets bargain shooting persons no five in rate for car); Wieckert, some elements differed and different victims People v. 191 Colo. involved). (1976) were part P.2d overruled on other grounds by People, 194 Colo. Villafranca (1978) (defendant act committing P.2d e.g., See, Trim v. 1996 OK CR intending place of violence to more than one 519 U.S. P.2d may multiple (1996) in fear be convicted of of (multiple 136 L.Ed.2d 17 convic statute, tions were error defendant sold ob enses under the same three and defendant where f officers, time); shot four times at car where several magazines scene at one Hunnicutt stood). daughter 110-111 his wife and discharge weapon, where com punishment will be defendant's liability. A multiple criminal victims are involved.24 We now turn with his mensurate an act of violence question posed who commits the Tenth Circuit. defendant interpretation drive-by of the one light In of our to harm more than the intent likely harm to cause person or a means statute, shooting find that Locke was we culpable more than persons is to several wrongly and must be overruled. decided person.18 one who harms defendant meaning as it The statute's is the same Burleson's convictions when require drive-by shooting statutes T7 The . were affirmed discharge weapon specific intent safety disregard of another conscious V.P.J., LILE, J., Leg JOHNSON, persons.19 To determine concur. intentions, provi interpret islature's *4 LUMPKIN, STRUBHAR, J., P.J., and in of the entire statute. sion the context dissent. within Section drive-by provision is contained shooting prohibits with intent which also LUMPKIN, Presiding Judge: dissents. deadly weapon.20 a to kill and with assault 1 I dissent to the Court's decision that kill shooting with intent to The offense of 652(B) multiple § O.S.Supp.1997, allows for any per explicitly requires the intent to kill my separate I in prosecutions. As stated deadly battery a Assault and with son. (Okl.Cr vote to Locke v. 943 P.2d 1090 statute, does not weapon, as set forth in this : .1997) injure or kill if explicitly require an intent to likely produce weapon force used is to or I in the reached concur results Turning pro However, death. to the criminal statutes in this case. I do so Court behavior, simple statutory application hibiting on an of the assault re based similar another; attempt injure quires a willful to O.S.Supp.1992, language contained in 21 simple battery requires only the willfuluse of 652(B). § opinion notes "[this As injure;22 and force with no intent to assault using statute is limited the act of battery dangerous weapon re with the intentional dis vehicle to facilitate bodily Taking quires do harm.23 intent to charge in a reckless manner". of a firearm whole, it clear category of crimes as is B is on the use of a The focus of subsection punish Legislature intended to willful regardless per use of vehicle of the number whether of force or violence another safety in disregarded sons whose specific has the intent to or not a defendant discharge weapon from the vehicle. of per injure phrase "person kill. or or B A and of Section focus Subsections that use of one vehi sons" does not indicate prohibited being committed on on the acts persons cle to several constitutes a shoot "another", analysis specific intent ie the Rather, Legis it single event. indicates reason, opinion. For that the Court's drive-by recognition shootings lature's charges may and convie- be filed is, often involve more than one viectim-that A and C tions affirmed under Subsection a crime more than one constitute prohibited vietim of the for each individual person. However, operative language act. of THEREFORE, B is the use of the vehicle Legis find that the Subsection multiple counts for discharge lature intended to allow facilitate disregard for the safe- weapon to facilitate the conscious the offense of use of vehicle O.S.1991, § Alvarez, Cal.App.4th 641. People 11 Cal. 21. 21 18. (1992) (citation omitted). Rptr.2d 21 O.S.1991, § 642. 652(B) O.S.Supp.1992, (prohibiting § "any use of vehicle to facilitate the intentional § O.S.Supp.1999, 23. 21 firearm, discharge any of kind of crossbow or weapon disregard for the safe- other in conscious ty any persons"). other or request briefing argu- and oral 24. Burleson's ment, February DENIED. filed 652(A),(C). O.S.Supp.1999, §§ any persons. Apply- ty of other statute, only plain language of the

ing the can be sustained for the use

one conviction particular place at that at the

of the vehicle say time. That is not

charge under B could not be Subsection

joined multiple counts under other

statutory provisions provide sep- which

arate offenses when victims are

involved. P.2d at 1097. only published

T2 Locke is the case ad

dressing multiple prosecutions the issue of 652(B). Therefore,

under it is the binding

decision on this Court. See Rule

3.5(C)(B), Rules the Oklahoma Court 22, Ch.18, Appeals, App. Title Criminal determining In that Locke was *5 decided,

wrongly ignoring the Court is estab precedent

lished in order to achieve a desired particular

result in a case. However, recognize I the decision in specifically

Locke was not declared to be Therefore, applied it cannot be

retroactive. Appellant's which was decided case before

Locke.

2002 OK CR 17 Oklahoma, Appellant,

The STATE of Appellee. HOWERTON,

Frankie

No.SR-2001-242. Appeals

Court of Criminal of Oklahoma.

April