Supreme Court of California Justia
Citation 29 Cal.4th 720 original opinion
People v. Kramer



People v. Kramer (2002) , Cal.4th

[No. S103746. Dec. 23, 2002.]

THE PEOPLE, Plaintiff and Respondent, v. PETER WILLIAM KRAMER, Defendant and Appellant.

(Superior Court of Orange County, No. 98SF0113, Christopher W. Strople, Judge.)

(The Court of Appeal, Fourth Dist., Div. Three, No. G027217, Unpublished opinion.)

(Opinion by Chin, J., expressing the unanimous view of the court.)

COUNSEL

Nancy L. Tetreault, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Janelle Boustany, Steven T. Oetting and Arlene Aquintey Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CHIN, J.-

Sometimes a single act constitutes more than one crime. When that happens, the person committing the act can be convicted of each of those crimes, but Penal Code section 654 fn. 1 prohibits punishing the person for more than one of them. When a defendant is convicted of two or more offenses for which section 654 prohibits multiple punishment, the trial court must impose sentence for one of them and stay imposition of sentence for the others. (See People v. Norrell (1996) 13 Cal.4th 1 (Norrell).) In Norrell, we interpreted section 654 as allowing the court to impose sentence for any of the offenses and not necessarily for the most serious one. A year later, the Legislature amended section 654 so that, as relevant here, it now provides: "(a) 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 Slip Opn. Page 2 omission be punished under more than one provision." (Sen. Bill No. 914 (1997-1998 Reg. Sess.), enacted as Stats. 1997, ch. 410, § 1.) We granted review to decide an issue arising under this amended version of section 654.

Defendant fired a gun at a moving car containing two occupants. For this act, a jury convicted him both of discharging a firearm at an occupied vehicle (§ 246) and assault with a firearm (§ 245, subd. (a)(2)). As to the assault charge only, the jury also found true a sentence-enhancing allegation that defendant personally used a firearm. (§ 12022.5, subd. (a).) The trial court sentenced defendant to prison for the middle term of five years for discharging a firearm at an occupied vehicle and a consecutive term of four years, the middle term, for the section 12022.5, subdivision (a), enhancement, for a total sentence of nine years. It stayed the sentence for the assault charge. The Court of Appeal held that the court erred in imposing the firearm-use enhancement for the assault charge because the court could not impose an enhancement on a count for which sentence was stayed. It also held that on remand, the court must impose sentence for the charge of discharging a firearm at an occupied vehicle rather than for the assault charge. The correctness of this latter ruling is before us.

The punishment for violating section 246 is three, five, or seven years. The punishment for violating section 245, subdivision (a)(2), is two, three, or four years. Therefore, viewing these sections in isolation, section 246 provides for the longest potential term of imprisonment. However, the section 246 count did not have attached to it the firearm-use enhancement of section 12022.5, subdivision (a). The section 245, subdivision (a)(2), count, did have that enhancement. fn. 2 The Slip Opn. Page 3 firearm-use enhancement is three, four, or 10 years. Thus, the assault charge provides for a longer potential term of imprisonment if the firearm-use enhancement is included. The question before us, accordingly, is whether the court considers enhancements in determining which provision provides for the longest potential term of imprisonment.

The Court of Appeal held that the sentencing court may only consider the underlying offense, and must disregard enhancements, in determining the sentence that section 654 requires it to impose. We disagree. The statutory language seems clear. Nothing in that language excludes enhancements. A maximum sentence of 14 years (for the assault plus enhancement) provides a longer potential term of imprisonment than a maximum sentence of seven years (for discharging a firearm at an occupied vehicle). Accordingly, the amended version of section 654 seems to require the court to impose sentence on the assault charge.

Even if we considered the statute less clear, a review of its purpose and legislative history supports this conclusion. (See Estate of Griswold (2001) 25 Cal.4th 904, 911-912.) Justice Arabian, joined by Justice Kennard and then Justice George, dissented in Norrell, supra, 13 Cal.4th 1, and urged the Legislature to abrogate its holding. (Id. at pp. 12-24 (conc. & dis. opn. of Arabian, J.); see also id. at pp. 11-12 (conc. opn. of Baxter, J.) [also suggesting a legislative response].) The legislative history, and its reliance on the dissent, makes clear that the Legislature did intend to abrogate that holding. Justice Arabian argued it was anomalous to permit a person to receive a lower sentence than would otherwise be Slip Opn. Page 4 possible simply because the person was convicted of two crimes--one with a longer sentence than the other--rather than only one crime--the one with the longer sentence. "As we have often stated, the purpose of section 654 'is to insure that a defendant's punishment will be commensurate with his culpability.' [Citations.] A person who commits two crimes is not less culpable than if that person had committed only one of those two crimes. Allowing a reduced sentence because of increased criminal behavior is not reasonable, and does not make punishment commensurate with culpability." (Norrell, supra, at p. 15 (conc. & dis. opn. of Arabian, J.), italics deleted; also quoted in Sen. Com. on Public Safety, Rep. on Sen. Bill No. 914 (1997-1998 Reg. Sess.) p. 5.)

The Senate committee report stated that the bill would "require the judge to sentence a defendant to the crime for which he or she would receive the longest sentence," and would therefore limit the sentencing court "to the longest available sentence." (Sen. Com. on Public Safety, Rep. on Sen. Bill No. 914, supra, p. 2, italics added.) The same report stated that the "bill is in response to, and would overturn, the holding in [Norrell, supra, 13 Cal.4th 1]." (Id. at p. 3.) The report of the Assembly Committee on Public Safety on the same bill quotes the bill's author: " 'It defies common sense that a defendant convicted of a string of crimes could avoid being sentenced on the most serious crime for which he or she is convicted.' " (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 814 (1997-1998 Reg. Sess.) as amended Apr. 15, 1997, p. 1.)

In this case, if defendant had been convicted solely of assault with a firearm, the court would have had to sentence him on that count, resulting in a potential term of imprisonment of up to 14 years (a maximum of four years for the substantive count plus a maximum of 10 years for the firearm-use enhancement). Defendant argues that because he was also convicted of discharging a firearm at an occupied vehicle, section 654 requires instead that he be sentenced for that Slip Opn. Page 5 crime, and thus the maximum sentence is seven years. He claims, in effect, that this second conviction requires him to receive a shorter sentence than a single conviction would have required. But the Legislature, in amending section 654, agreed with the Norrell dissent. "Additional criminality must never be rewarded." (Norrell, supra, 13 Cal.4th at p. 24 (conc. & dis. opn. of Arabian, J.); also quoted in Sen. Com. on Public Safety, Rep. on Sen. Bill No. 914, supra, at p. 2.)

The Legislature was concerned with the actual overall sentence the defendant receives, not any portion of that sentence in isolation. Accepting defendant's argument would mean that, in this case, the amendment to section 654 accomplished the opposite of what the Legislature intended. Norrell merely permitted the trial court to impose sentence for the less serious offense. Defendant argues that section 654 now requires the court to give him a shorter sentence than he might have received had he been convicted solely of the assault charge. We do not so interpret section 654.

We express no opinion on what sentence the trial court should impose within the range of options for the assault charge. We merely hold that because that offense carries a longer potential term of imprisonment than defendant's other conviction, the court is required on remand to impose sentence for that assault.

Slip Opn. Page 6 We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with our opinion.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., Brown, J., and Moreno, J., concurred.

­FN 1. All further statutory references are to the Penal Code.

­FN 2. The reason for this circumstance is readily apparent. Section 12022.5, subdivision (a)(1), provides generally that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. However, subdivision (d) of section 12022.5 provides that a firearm-use enhancement may be imposed if the offense is a violation of section 245, subdivision (a)(2).

Petition for review after the Court of Appeal remanded for resentencing and otherwise affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Does Penal code section 654, which provides that "[a]n 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" (emphasis added), require the trial court to consider only the base term of each offense in determining which provides the longest potential term of imprisonment, or should the court in making this determination consider both the base term of an offense and any applicable enhancements attached to that offense?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 12/23/200229 Cal.4th 720 original opinionS103746Review - Criminal Appealclosed; remittitur issued

Parties
1The People (Plaintiff and Respondent)
Represented by Arlene Aquintey Sevidal
Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Kramer, Peter William (Defendant and Appellant)
Represented by Nancy L. Tetreault
Attorney at Law
346 N. Larchmont Blvd.
Los Angeles, CA

3Kramer, Peter William (Defendant and Appellant)
Represented by Appellate Defenders, Inc.
555 West Beech Street, Suite 300
555 West Beech Street, Suite 300
San Diego, CA


Disposition
Dec 23 2002Opinion: Reversed

Dockets
Jan 18 2002Petition for review filed
by AG for respondent (The People).
Jan 22 2002Record requested
Jan 24 2002Received Court of Appeal record
yellow plastic file
Mar 13 2002Petition for Review Granted (criminal case)
Votes: George C.J., Kennard, Baxter, Werdegar, Chin & Moreno JJ.
Mar 18 2002Received Court of Appeal record
1-doghouse
Apr 5 2002Request for extension of time filed
by respondent asking to May 12, 2002 to file opening brief on the merits. (received in San Diego)
Apr 11 2002Extension of time granted
to and including May 12, 2002 for respondent to file the opening brief on the merits. No further extensions of time are contemplated.
May 3 2002Request for extension of time filed
In San Diego by Respondent asking until June 12, 2002 to file respondent's Opening Brief on the Merits.
May 9 2002Extension of time granted
To June 12, 2002 to file respondent's opening brief on the merits. No further extensions of time will be granted.
May 9 2002Counsel appointment order filed
Upon request of appellant for appointment of counsel, Nancy L. Tetreault is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty days from the date respondent's opening brief on the merits is filed.
Jun 10 2002Opening brief on the merits filed
by counsel (AG) for respondent (People).
Jun 10 2002Request for judicial notice filed (in non-AA proceeding)
by counsel for respondent.
Jun 11 2002Telephone conversation with:
Cathy, assistant to counsel for respondent, informing the court that she will be sending the exhibits that should have been with request for judicial notice filed on June 10, 2002.
Jun 12 2002Received:
exhibits for request for judicial notice from respondent. (Should have been attached to request filed 6/10/02.)
Jul 5 2002Request for extension of time filed
by appellant asking to August 7, 2002 to file answer brief on the merits. *granted - order being prepared*
Jul 9 2002Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 7, 2002. No further extensions of time are contemplated.
Aug 6 2002Request for extension of time filed
by appellant requesting to August 21, 2002 to file answer brief on the merits. faxed to sf attn: Debbie
Aug 8 2002Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 21, 2002. No further extensions will be granted.
Aug 9 2002Answer brief on the merits filed
appellant Peter William Kramer
Aug 9 2002Request for judicial notice filed (in non-AA proceeding)
appellant Peter William Kramer
Aug 29 2002Reply brief filed (case fully briefed)
by respondent. (filed in San Diego)
Oct 2 2002Case ordered on calendar
Wednesday, November 6, 2002 @9am (Sacramento)
Oct 21 2002Request for judicial notice granted
Respondent's request for judicial notice, filed June 10, 2002, and appellant's request for judicial notice, filed August 29, 2002, are granted.
Nov 6 2002Cause argued and submitted
Dec 23 2002Opinion filed: Judgment reversed
Majority Opinion by Chin, J. Joined by George C.J., Kennard, Baxter, Werdegar, Brown & Moreno, JJ.
Jan 24 2003Remittitur issued (criminal case)
CA4/3
Feb 3 2003Received document entitled:
Receipt for remittitur - from CA4/3.
Mar 19 2003Compensation awarded counsel
Atty Tetreault

Briefs
Jun 10 2002Opening brief on the merits filed
by counsel (AG) for respondent (People).
Aug 9 2002Answer brief on the merits filed
appellant Peter William Kramer
Aug 29 2002Reply brief filed (case fully briefed)
by respondent. (filed in San Diego)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website