IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S191341
v.
Ct.App. 5 F059287
MAURICE D. SANDERS,
Kern County
Defendant and Appellant.
Super. Ct. No. BF126309A
Here we are called upon to apply two related but distinct concepts: (1) the
rule prohibiting multiple convictions based on greater and necessarily included
offenses, and (2) Penal Code section 654‟s prohibition against multiple
punishment when “[a]n act . . . is punishable in different ways by different
provisions of law . . . .”1 Defendant Maurice D. Sanders was convicted on two
counts of possessing a firearm after conviction of a felony (former § 12021, subd.
(a)(1), hereafter section 12021(a)(1)), and two counts of possessing a firearm after
conviction of a specified violent offense (former § 12021.1, subd. (a), hereafter
section 12021.1(a)).2 All four counts were based on his simultaneous possession
1
Further statutory references are to the Penal Code, unless otherwise
indicated.
2
Former section 12021(a)(1) was repealed effective January 1, 2012, but its
provisions were reenacted without substantive change as section 29800,
subdivision (a)(1). (See People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1
(Correa); Stats. 2010, ch. 711, § 6.) Former section 12021.1(a) was repealed and
(footnote continued on next page)
1
of two firearms. We hold that neither section 12021.1(a) nor section 12021(a)(1)
is a necessarily included offense of the other. Accordingly, under section 954,
defendant was properly convicted of both offenses. Applying our recent decisions
in Correa, supra, 54 Cal.4th 331, and People v. Jones (2012) 54 Cal.4th 350, we
further hold that defendant may be separately punished for two violations of
section 12021(a)(1) and of section 12021.1(a) based on his simultaneous
possession of two firearms. However, he may not also be separately punished for
violations of section 12021(a)(1) and section 12021.1(a) based on possession of
the same firearm. Accordingly, we reverse the Court of Appeal, which reached
different conclusions about the propriety of multiple convictions and multiple
punishments in this case.
I. BACKGROUND
Officers conducting a parole search of defendant‟s residence discovered
two operable shotguns and ammunition. Defendant was charged with two counts
of possessing a firearm after conviction of a felony under section 12021(a)(1)
(offender in possession), based on felony convictions for making criminal threats
(§ 422), discharging a firearm with gross negligence (§ 246.3), and kidnapping
(§ 207). Based on the same convictions he was also charged with two counts
under section 12021.1(a), alleging gun possession by a person convicted of a
(footnote continued from previous page)
reenacted as section 29900, subdivision (a)(1) without substantive change. (Stats.
2010, ch. 711, § 6.) Because defendant was convicted under the repealed statutes,
and they were only renumbered without substantive change, we refer to former
sections 12021(a)(1) and 12021.1(a) throughout this opinion for clarity and
convenience. For brevity, we will generally not use the word “former.”
2
specified violent offense (violent offender in possession).3 At trial defendant
denied that he lived at the residence and claimed the two shotguns were not his.
He stipulated that he previously was convicted of a felony within the meaning of
sections 12021 and 12021.1. The jury convicted him of all four counts.
Defendant was also charged with various enhancements based on his prior
felony convictions. He waived his right to a jury trial on the enhancements, and
the trial court found he had suffered four prior convictions that qualified him for
sentencing under the Three Strikes law (§§ 667, subds, (b)-(i), 1170.12, subds. (a)-
(d)), and that he had served three prior prison terms (§ 667.5, subd. (b)). It
sentenced him to two concurrent terms of 25 years to life for his offender in
possession counts under section 12021(a)(1). It imposed terms of 25 years to life
for his violent offender in possession counts under section 12021.1(a), but stayed
execution of those terms under section 654. Finally, it struck punishment for the
three prior prison terms pursuant to section 1385.
On appeal, defendant argued, and the Attorney General conceded, that
violent offender in possession under section 12021.1(a) is a necessarily included
offense of offender in possession under section 12021(a)(1). The Court of Appeal
accepted the Attorney General‟s concession and reversed defendant‟s section
3
There are some anomalies in the charging document. For example, making
criminal threats (§ 422) was listed as a qualifying violent offense in counts two
and four charging a violation of section 12021.1(a). Making criminal threats,
however, is not an offense that qualifies as a violent offense under the statute.
(Former § 12021.1, subd. (b), repealed and renumbered as § 29905 (hereafter
section 12021.1(b).) In addition, a fourth prior conviction, assault with a firearm
(§ 245, subd. (a)(2)), was charged as a qualifying conviction under the “Three
Strikes” law, but was not charged as a qualifying felony under sections
12021(a)(1) and 12021.1(a). None of these discrepancies is of any moment here.
3
12021.1(a) convictions. The Court of Appeal also stayed defendant‟s concurrent
sentence on the second section 12021(a)(1) conviction under section 654.
We denied defendant‟s petition for review challenging the sufficiency of
the evidence. On our own motion, we ordered review limited to the following
issues: “(1) Is possession of a firearm after conviction of a specified violent
offense (Pen. Code § 12021.1, subd. (a)) a necessarily included offense of
possession of a firearm after conviction of a felony (Pen. Code § 12021, subd.
(a)(1))?” and “(2) Was defendant properly sentenced to concurrent terms for his
simultaneous possession of two firearms in violation of Penal Code section 12021,
subdivision (a)(1)?”
II. DISCUSSION
A.
Defendant’s Single Act of Possessing a Firearm Supported Multiple
Convictions Under Sections 12021(a)(1) and 12021.1(a)
While section 654 prohibits multiple punishment, it is generally permissible
to convict a defendant of multiple charges arising from a single act or course of
conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) However, a
“judicially created exception to this rule prohibits multiple convictions based on
necessarily included offenses. [Citations.]” (People v. Montoya (2004) 33 Cal.4th
1031, 1034.)
When a defendant is found guilty of both a greater and a necessarily lesser
included offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be reversed. (People v. Moran (1970) 1
Cal.3d 755, 763; accord, People v. Milward (2011) 52 Cal.4th 580, 589; People v.
Medina (2007) 41 Cal.4th 685, 701-702.) If neither offense is necessarily
included in the other, the defendant may be convicted of both, “even though under
section 654 he or she could not be punished for more than one offense arising
4
from the single act or indivisible course of conduct.” (People v. Ortega, supra, 19
Cal.4th 686, 693.)
As noted, defendant was convicted on two counts of offender in possession
(§ 12021(a)(1)) and two counts of violent offender in possession (§ 12021.1(a))
based on his simultaneous possession of two firearms. In light of the Attorney
General‟s concession below, the Court of Appeal held that section 12021.1(a) is a
necessarily included offense of section 12021(a)(1) and reversed defendant‟s
convictions on counts two and four.
In this court, defendant and the Attorney General agree that the rule against
multiple convictions based on necessarily included offenses bars separate
convictions under both sections for possession of the same gun. They disagree,
however, about which offense is necessarily included in the other. Defendant
argues that “section 12021, subdivision (a)(1), which applies to any felony
conviction, is the „greater‟ offense, because by definition it includes all of the
enumerated felonies in section 12021.1, subdivision (a).” Thus, he argues, violent
offender in possession is a “lesser included” offense of offender in possession.
Conversely, the Attorney General argues that offender in possession
(§ 12021(a)(1)) is a necessarily included offense of violent offender in possession
(§ 12021.1(a)) because a person who possesses a firearm, having previously been
convicted of one of the violent offenses listed in section 12021.1(b), will
necessarily be a felon in possession of a firearm under section 12021(a)(1). Both
arguments fail. Neither offense is necessarily included in the other.
“In deciding whether multiple conviction is proper, a court should consider
only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.)
“Under the elements test, if the statutory elements of the greater offense include all
of the statutory elements of the lesser offense, the latter is necessarily included in
the former.” (Id. at p. 1227.) In other words, “ „[i]f a crime cannot be committed
5
without also necessarily committing a lesser offense, the latter is a lesser included
offense within the former.‟ ” (Ibid., quoting People v. Lopez (1998) 19 Cal.4th
282, 288.)
Section 12021(a)(1) prohibited possession of a firearm by a person
convicted of (1) any felony or (2) an offense “enumerated in subdivision (a), (b),
or (d) of [former] Section 12001.6,” or (3) by a person addicted to a narcotic
drug.4 Although commonly referred to as “felon in possession of a firearm,” some
of the offenses listed in section 12001.6 were “wobbler” offenses that could result
in either a felony or misdemeanor conviction.5 In addition, subdivision (a)(2) of
section 12021 banned firearm possession by a person convicted of two or more
misdemeanor violations of section 417, subdivision (a)(2) (brandishing a firearm).
4
Former section 12021(a)(1) provided: “Any person who has been
convicted of a felony under the laws of the United States, the State of California,
or any other state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any
narcotic drug, and who owns, purchases, receives, or has in his or her possession
or under his or her custody or control any firearm is guilty of a felony.” (Italics
added.) See now section 29800, subdivision (a)(1). For ease of reference, we use
the shorthand term possession to encompass the broader description set forth in the
statute.
Former section 12001.6, was repealed effective January 1, 2012, but its
provisions were continued without substantive change and renumbered as section
23515. We will refer to this provision as section 12001.6. As relevant here,
section 12001.6 described offenses involving “the violent use of a firearm,”
including: assaults with a firearm in violation of section 245, subdivisions (a)(2),
(3), or (d) (§ 12001.6, subd. (a)); shooting at an inhabited dwelling in violation of
section 246 (§ 12001.6, subd. (b)); and brandishing a firearm in the presence of a
peace officer in violation of section 417, subdivision (c) (§ 12001.6, subd. (d)).
On the element of drug addiction, see People v. Washington (1965) 237
Cal.App.2d 59, 65-68.
5
Sections 245, subdivision (a)(2), 246, and 417, subdivision (c), are all
punishable as either a misdemeanor or a felony.
6
On the other hand, section 12021.1(a) prohibited firearm possession by
anyone who had been convicted of an enumerated “violent offense.” (See
§ 12021.1(b).)6 Most of the offenses listed in former section 12021.1(b) are
felonies, but not all. For example, like the offender in possession statute, section
12021.1 included the wobbler offenses enumerated in section 12001.6,
subdivisions (a), (b), and (d) (§ 12021.1(b)(27)), and two or more misdemeanor
violations of section 417, subdivision (a)(2) (§ 12021.1(b)(29)). In addition,
section 12021.1(b)(24) included “[a]ssault with a deadly weapon or force likely to
produce great bodily injury,” which is punishable as either a felony or a
misdemeanor. (§ 245, subd. (a)(1); see also People v. Feyrer (2010) 48 Cal.4th
426, 430.)7
Comparing these statutory elements, violent offender in possession
(§ 12021.1(a)) is not a necessarily included offense of offender in possession
(§ 12021(a)(1)). It was possible to violate section 12021(a)(1) without necessarily
violating section 12021.1(a). For example, a person could have violated section
12021(a)(1) by possessing a firearm after having been convicted of any felony not
6
Former section 12021.1(a) provided: “Notwithstanding subdivision (a) of
Section 12021, any person who has been previously convicted of any of the
offenses listed in subdivision (b) and who owns or has in his or her possession or
under his or her custody or control any firearm is guilty of a felony. A dismissal
of an accusatory pleading pursuant to Section 1203.4a involving an offense set
forth in subdivision (b) does not affect the finding of a previous conviction. If
probation is granted, or if the imposition or execution of sentence is suspended, it
shall be a condition of the probation or suspension that the defendant serve at least
six months in a county jail.” See now section 29900, subdivision (a)(1)-(3).
Subdivision (b) of section 12021.1 enumerated 29 violent offenses. See now
section 29905.
7
Sections 12021 and 12021.1 both required that the possession be knowing.
(People v. Snyder (1982) 32 Cal.3d 590, 592.) Accordingly, that element is not a
distinguishing factor for either offense.
7
included in the list of violent offenses under section 12021.1(b), or by possessing a
firearm while addicted to a narcotic drug. (See People v. Sanchez (1989) 211
Cal.App.3d 477, 483 [rejecting the argument that §§ 12021.1 and 12021 apply to
the “same group of individuals” because the latter section applies to a person who
is addicted to the use of narcotics or who has been convicted of a felony
“regardless of whether the felony is a violent offense”] [(italics added, fn.
omitted)].)
Defendant urges us to consider the “factual situation presented in this case,”
namely that defendant‟s prior conviction was in fact included in the list of violent
offenses under section 12021.1, in order to conclude that violent offender in
possession (§ 12021.1) is a necessarily included offense of offender in possession
(§ 12021(a)(1)). He reasons that, on the record here, he stands convicted of a
qualifying felony under both statutes. He then maintains that section 12021(a)(1)
is thus the greater offense in the sense that it is the broader offense: it applied to
any felony conviction, including all of the enumerated felonies in section
12021.1(a).
Defendant‟s argument applies the wrong standard. The statutory elements
test does not depend on which statute covers the broader range of conduct. Rather,
we ask if the greater offense cannot be committed without also committing the
lesser offense. In answering that question, we do not consider the underlying facts
of the case or the language of the accusatory pleading. (People v. Reed, supra, 38
Cal.4th at pp. 1229-1230 [declining to consider the language of the accusatory
pleading in deciding whether one offense is necessarily included in another];
People v. Ortega, supra, 19 Cal.4th at p. 698 [declining to consider the evidence
adduced at trial in deciding whether one offense is necessarily included in
another]; see also People v. Sanchez (2001) 24 Cal.4th 983, 988 [the court
considers whether one offense is necessarily included in another “in the
8
abstract”].) Thus, for purposes of the rule barring multiple convictions of
necessarily included offenses, it is irrelevant that two of defendant‟s alleged prior
felony convictions also potentially qualified as “violent offenses” under section
12021.1(b),8 or that defendant stipulated to having been “convicted of a felony
within the meaning of Penal Code Sections 12021 and 12021.1 . . . .”
Defendant‟s argument, that the general provisions of section 12021(a)(1)
necessarily trumped section 12021.1(a) to the extent the statutes overlapped in a
particular case, also contravenes the express statutory language of section
12021.1(a), that it was to apply “[n]otwithstanding subdivision (a) of section
12021.” The Legislature‟s use of the term “notwithstanding” in this context meant
that section 12021.1(a) applied without prevention or obstruction by section
12021(a)(1). (See People v. Palacios (2007) 41 Cal.4th 720, 728-729.)
Defendant‟s contrary interpretation of the statute renders the Legislature‟s use of
the word “notwithstanding” meaningless, and violates the principle that when
interpreting a statute, significance should be given to every word, phrase, and
sentence where possible. (See People v. Black (1982) 32 Cal.3d 1, 5.)
In the abstract, a person could have violated section 12021(a)(1) without
violating section 12021.1(a). Accordingly, section 12021.1(a) is not an offense
necessarily included within section 12021(a)(1).
The Attorney General takes a different, but equally flawed position: that
the broader section 12021(a)(1) prohibiting offender in possession is a necessarily
included offense of the more specific section 12021.1(a) prohibiting violent
8
Defendant‟s prior felony convictions for discharge of a firearm with gross
negligence (§ 246.3) and kidnapping (§ 207) potentially qualified as “violent
offense[s]” under section 12021.1(b)(8) (“any felony in which the defendant uses a
firearm which use has been charged and proven”) and 12021.1(b)(19)
(“Kidnapping”).
9
offender in possession. She posits that any person who possessed a firearm,
having been convicted of a qualifying violent offense under section 12021.1(b),
“would have necessarily committed a felony and possessed a firearm, fulfilling the
elements of section 12021, subdivision (a)(1).” We decline to accept this
concession because it is not supported by the statutory language. (See Desny v.
Wilder (1956) 46 Cal.2d 715, 729; Bradley v. Clarke (1901) 133 Cal. 196, 209-
210.)9
We can identify at least one circumstance in which a person could have
violated the more narrow section 12021.1(a) without necessarily having violated
section 12021(a)(1). Section 12021.1 applied upon conviction of certain “violent
offense[s],” not just violent felonies. (§ 12021.1(b), now § 29905, italics added;
People v. Sanchez, supra, 211 Cal.App.3d at pp. 481-483 [rejecting an argument
that § 12021.1(a) applied only to violent felony convictions]; see also 2 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and
Welfare, § 238, p. 942 [“A felony conviction is not required to invoke the
prohibition of [section 12021.1(a)]; it is only necessary that the underlying
conviction be for a „violent offense‟ specified in the statute.”].) As noted, several
of the “violent offense[s]” set out in former section 12021.1(b) are either wobblers
or straight misdemeanors. (See § 12021.1(b)(24), (27) & (29).) The Attorney
General‟s argument that a person falling under section 12021.1(b) “would have
necessarily committed a felony” under section 12021(a)(1) is simply inaccurate.
9
Below, the Attorney General conceded the same position defendant
advances here: that section 12021.1(a) is a necessarily included offense of section
12021(a)(1). Because the question is one of law that is properly before us on our
own motion (Cal. Rules of Court, rule 8.512(c)(2)), we are not bound by the
Attorney General‟s concession in either forum (Bradley v. Clarke, supra, 133 Cal.
at pp. 209-210; People v. Randle (2005) 35 Cal.4th 987, 1001-1002, disapproved
on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201).
10
Moreover, although the two statutes overlap in their inclusion of several wobbler
or misdemeanor offenses,10 only section 12021.1(a) could be satisfied by a
misdemeanor violation of section 245, subdivision (a)(1). (See
§ 12021.1(b)(24).)11
The second sentence of section 12021.1(a) further illustrates the point.
That sentence provided, “A dismissal of an accusatory pleading pursuant to
Section 1203.4a involving an offense set forth in subdivision (b) does not affect
the finding of a previous conviction.” Section 1203.4a requires a trial court to
dismiss misdemeanor or infraction convictions in certain circumstances, and has
no relevance in cases involving felonies.
10
As noted, sections 12021(a)(1) and 12021.1(b)(27) both included additional
offenses that were punishable as either a felony or a misdemeanor, by reference to
a conviction for an “offense enumerated in subdivision (a), (b), or (d) of
Section 12001.6.” Likewise, sections 12021(a)(2) and 12021.1(b)(29) both
banned firearm possession by a person convicted of two or more misdemeanor
violations of section 417, subdivision (a)(2).
11
Former section 12021, subdivision (c)(1) (repealed and renumbered as
§ 29805) prohibited possession of a firearm by persons convicted of several
enumerated misdemeanor violations, including a misdemeanor violation of
section 245, subdivision (a)(1). That section applied only if the firearm possession
occurred within 10 years of the misdemeanor conviction, and only if the defendant
did not otherwise qualify for punishment under section 12021(a). (§ 12021,
subd. (c)(1) [“[e]xcept as provided in” § 12021(a) or § 12021, subd. (c)(2)];
accord, Rash v. Lungren (1997) 59 Cal.App.4th 1233, 1238.)
Neither party invites us to consider subdivision (c)(1) of section 12021 for
purposes of applying the rule against multiple convictions for necessarily included
offenses. Accordingly, we need not decide whether section 12021(a)(1) should be
considered in isolation or together with subdivision (c)(1) of that section as
constituting one crime. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5;
id. at p. 170, fn. 19; see generally People v. Ortega, supra, 19 Cal.4th at pp. 694-
699, [the traditional crime of theft includes both petty theft and grand theft];
People v. Ryan (2006) 138 Cal.App.4th 360, 364 [when the Legislature divided
§ 470, defining the traditional crime of forgery, into subdivisions, it described
“different ways of committing a single offense, i.e., forgery”].)
11
Consequently, a person convicted of a misdemeanor violation of section
245, subdivision (a)(1) would be barred from possessing a firearm under section
12021.1(a), while he or she would not be barred from possessing a firearm under
section 12021(a)(1). (People v. Sanchez, supra, 211 Cal.App.3d at pp. 481-483
[§ 12021.1(a) applied to a misdemeanor violation of § 245, subd. (a)(1)].) It
follows that offender in possession (§ 12021(a)(1)) is not a necessarily included
offense of violent offender in possession (§ 12021.1(a)) because a person could
have violated section 12021.1(a) without necessarily violating section 12021(a)(1).
(Cf. People v. Williams (2009) 170 Cal.App.4th 587, 643-644 [possession of
specified controlled substances (Health & Saf. Code § 11377, subd. (a)) is not a
necessarily included offense of possession of different list of controlled substances
while armed (Health & Saf. Code § 11370.1, subd. (a)) because the list of
controlled substances in each statute is not coextensive]; People v. Scheidt (1991)
231 Cal.App.3d 162, 165-166 [possession of a sawed-off shotgun (former
§ 12020, subd. (a), now § 33215) is not a necessarily included offense of
possession of a firearm by a person convicted of a violent offense (former
§ 12021.1(a))].)
In sum, we conclude that neither section 12021(a)(1) nor section 12021.1(a)
is a necessarily included offense of the other, because it was possible to commit
either offense without committing the other. (People v. Ortega, supra, 19 Cal.4th
at p. 693.) Accordingly, the rule against multiple convictions for necessarily
included offenses does not bar defendant‟s separate convictions for violating both
sections based on possession of the same weapon. The Court of Appeal erred in
reversing defendant‟s convictions on counts two and four.
12
B.
Defendant Could Be Separately Punished for Each Firearm He Illegally
Possessed
The trial court sentenced defendant to concurrent terms of 25 years to life
for his two convictions for offender in possession under section 12021(a)(1). The
Court of Appeal stayed one of the concurrent sentences pursuant to section 654 for
lack of evidence that defendant harbored a separate intent or objective in
possessing the two firearms. Our recent precedent compels the opposite result.
We held in Correa, supra, 54 Cal.4th 331, that, “[b]y its plain language
section 654 does not bar multiple punishment for multiple violations of the same
criminal statute.” (Id. at p. 334.) Section 654 expressly applies only to “[a]n act
or omission that is punishable in different ways by different provisions of
law . . . .” (§ 654, subd. (a), italics added.) In refusing to extend section 654‟s
reach beyond its plain language, we disapproved of dictum in Neal v. State of
California (1960) 55 Cal.2d 11, 18, footnote 1, which stated: “[a]lthough section
654 does not expressly preclude double punishment when an act gives rise to more
than one violation of the same Penal Code section or to multiple violations of the
criminal provisions of other codes, it is settled that the basic principle it enunciates
precludes double punishment in such cases also. [Citations.]” (See Correa, at pp.
334, 338.) We observed that Neal‟s interpretation of the statue undermines the
purpose of section 654, which is to ensure that the defendant‟s punishment will be
commensurate with his culpability. (Correa, at pp. 341-343.) Generally, a person
who violates the same statute multiple times is more culpable than a person who
violates the statute only once. (Id. at pp. 341-342, citing People v. Latimer (1993)
5 Cal.4th 1203, 1211.)
Correa, like defendant here, was convicted of multiple counts of offender in
possession (§ 12021(a)(1)), based on his simultaneous possession of a cache of
weapons. In that case, we announced, as a new rule, that section 654 does not bar
13
multiple punishment for violations of the same provision of law. We held further
that this new rule could not apply retroactively to Correa under the protections of
the ex post facto clause. (Correa, supra, 54 Cal.4th at pp. 334, 344-345.)
We also concluded, however, that the Legislature had specifically exempted
section 12021(a)(1) from the application of section 654 in circumstances where a
defendant is found in possession of several firearms. We reasoned: “The
Legislature, in enacting former section 12001, subdivision (k) in 1994, made it
clear that the magnitude of a felon‟s culpability depends on the number of
weapons he or she possesses. It provided that the possession of „each firearm . . .
shall constitute a distinct and separate offense‟ under, among other provisions,
section 12021.” (Correa, supra, 54 Cal.4th at p. 345.)12 Accordingly, we held
that Correa‟s sentence “did not violate section 654 because specific statutory
authority makes possession of each weapon a separate offense. (Former § 12001,
subd. (k).)” (Correa, at p. 334.)
Likewise here. Defendant‟s two convictions for violating section
12021(a)(1), based on his simultaneous possession of two firearms, are exempt
from section 654‟s application because the Legislature intended that the
possession of “each firearm . . . shall constitute a distinct and separate offense”
under that statute. (§ 12001, subd. (k).) The same is true of defendant‟s two
convictions for violating section 12021.1(a). (§ 12001, subd. (k).) Applying this
12
Former section 12001, subdivision (k), was repealed effective January 1,
2012, but its provisions were reenacted without substantive change and
renumbered as section 23510. We will refer to this provision as section 12001.
Section 12001, subdivision (k), provided: “For purposes of Sections 12021,
12021.1 [and other enumerated sections of the Pen. Code and Welf. & Inst. Code],
notwithstanding the fact that the term „any firearm‟ may be used in those sections,
each firearm . . . shall constitute a distinct and separate offense under those
sections.”
14
rule, which has been in existence since the 1994 amendment to section 12001,
raises no ex post facto concerns.13
Defendant, however, may not be separately punished for violations of
sections 12021(a)(1) and 12021.1(a) based on his possession of the same firearm,
even though multiple convictions for both offenses were proper. In People v.
Reed, supra, 38 Cal.4th 1224, we held that “[w]hen section 954 permits multiple
conviction, but section 654 prohibits multiple punishment, the trial court must stay
execution of sentence on the convictions for which multiple punishment is
prohibited.” (Id. at p. 1227.) We recently affirmed that principle in People v.
Jones, supra, 54 Cal.4th 350. Jones, a convicted felon, was found in possession of
a loaded .38-caliber revolver that was not registered to him. He was convicted of
three crimes: possession of a firearm by a felon, carrying a readily accessible
concealed and unregistered firearm, and carrying an unregistered loaded firearm in
public. We concluded that “[b]ecause different provisions of law punish in
13
Defendant maintained at oral argument that it would be unfair to apply the
holding in Correa to him because he prevailed in the Court of Appeal under the
binding authority of Neal, and he did not raise the multiple punishment issue in his
petition for review. Although defendant couches his argument in terms of
detrimental reliance, he fails to provide either facts or legal authority to support
that claim. Defendant was aware at the time he petitioned for review that this
court had granted review in Correa to resolve the same issue of multiple
punishment presented in his case, a fact he noted in the Court of Appeal briefing.
Defendant was also on notice of this court‟s authority to order review on its own
motion. (Cal. Rules of Court, rule 8.512(c).) Finally, it is well established that the
appellate court can correct a legal error resulting in an unauthorized sentence
(including a misapplication of § 654) at any time. (People v. Scott (1994) 9
Cal.4th 331, 354 & fn. 17.) Notably, the result we authorize here does not exceed
the term of imprisonment originally imposed by the trial court and thus does not
penalize defendant for exercising his appellate rights. (See People v. Hanson
(2000) 23 Cal.4th 355, 365-367.)
15
different ways defendant‟s single act, . . . section 654‟s plain language prohibits
punishment for more than one of those crimes.” (Id. at p. 352.) Likewise, here,
defendant‟s single act of possessing a firearm resulted in felony convictions under
both sections 12021(a)(1) and 12021.1(a). Section 654 prohibits multiple
punishment under this circumstance. (People v. Jones, supra, 54 Cal.4th at pp.
358-360.)
The question remains which of defendant‟s sentences must be stayed. The
trial court sentenced defendant on his prior conviction possessions
(§ 12021(a)(1)), and stayed execution of sentence on his violent conviction
possessions (§ 12021.1(a)). We conclude that the plain language of section 654
and section 12021.1(a) compel the opposite result.
As relevant, section 654, subdivision (a), provides: “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 omission be punished under more than one
provision.” (Italics added; see also People v. Kramer (2002) 29 Cal.4th 720, 722-
725 [construing the term “longest potential term of imprisonment” in § 654].)
The punishment for violating section 12021(a)(1) was 16 months, two, or
three years. (§§ 18 & 12021(a)(1), now § 29800, subd. (a)(1).) The punishment
for violating section 12021.1(a) was likewise 16 months, two, or three years.
(§§ 18 & 12021.1(a), now § 29900, subd. (a)(1).) Section 12021.1(a) additionally
provided, however, that “[i]f probation is granted, or if the imposition or execution
of sentence is suspended, it shall be a condition of the probation or suspension that
the defendant serve at least six months in a county jail” except in unusual cases
where the interests of justice warrant no jail time. (See § 12021.1, subd. (d).)
Accordingly, section 12021.1(a) provided for the longest potential term of
imprisonment, at least where a grant of probation was involved, because it
16
imposed a mandatory minimum jail term in that circumstance. (See § 2900.5,
subd. (c) [defining “term of imprisonment” to include “any period of
imprisonment imposed as a condition of probation”].)
Sentencing defendant under section 12021.1(a) is also consistent with the
statute‟s express mandate that it was to apply “[n]otwithstanding subdivision (a) of
section 12021 . . . .” As previously noted, the phrase “notwithstanding” signals
the Legislature‟s intent to have the statute apply without prevention or obstruction
by section 12021(a)(1). (See People v. Palacios, supra, 41 Cal.4th at pp. 728-
729.) It would have contravened legislative intent to stay execution of sentence on
a section 12021.1(a) conviction in favor of imposing sentence on a section
12021(a)(1) conviction. (Cf. People v. Ahmed (2011) 53 Cal.4th 156, 163 [courts
must look to the language of the statutes themselves to see if they supply the
answer regarding whether or how multiple punishments may be imposed].)
Accordingly, we hold that defendant may be separately punished for two
violations of section 12021(a)(1) and of section 12021.1(a) based on his
simultaneous possession of two firearms. The Court of Appeal erred in
concluding otherwise. However, we also hold that defendant may not be
separately punished for violations of sections 12021(a)(1) and 12021.1(a) based on
possession of the same firearm. While the trial court correctly recognized this
point, it incorrectly stayed execution of sentence on the wrong offenses
(§ 12021.1(a)).
17
III. DISPOSITION
We reverse the judgment of the Court of Appeal insofar as it reversed
defendant‟s convictions on counts two and four, vacated the sentences on those
counts, and ordered that the sentence on count three be stayed. In all other
respects, we affirm the Court of Appeal judgment. We remand the matter to that
court for further proceedings consistent with our opinion.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
18
CONCURRING OPINION BY LIU, J.
The doctrine of lesser included offenses is, at its core, a doctrine about
legislative intent. It “is part of the constitutional guarantee against double
jeopardy.” (People v. Smith (1950) 36 Cal.2d 444, 448; People v. Kehoe (1949)
33 Cal.2d 711, 713.) “[O]nce a conviction on the lesser offense has been obtained,
„ “to . . . convict of the greater would be to convict twice of the lesser.” ‟
[Citation.]” (People v. Fields (1996) 13 Cal.4th 289, 306.) Importantly, double
jeopardy principles do not bar a legislature from authorizing multiple conviction
and multiple punishment for necessarily included offenses. (Garrett v. United
States (1985) 471 U.S. 773, 779; Brown v. Ohio (1977) 432 U.S. 161, 165.)
Instead, the rule against multiple convictions of necessarily included offenses is a
judicially created doctrine premised on the notion that the legislature “ordinarily
does not intend to punish the same offense under two different statutes.
Accordingly, where two statutory provisions proscribe the „same offense,‟ they are
construed not to authorize cumulative punishments in the absence of a clear
indication of contrary legislative intent.” (Whalen v. United States (1980) 445
U.S. 684, 692.)
Here, the legislative intent is clear on the face of the statute. Former Penal
Code section 12021.1, subdivision (a) (hereafter section 12021.1(a)) expressly
states that it applies “[n]otwithstanding subdivision (a) of section 12021.” This is
a clear expression of the Legislature‟s intent that a defendant whose conduct
1
violates former Penal Code section 12021, subdivision (a)(1) (hereafter section
12021(a)(1)) may also be convicted under section 12021.1(a). Accordingly, I
agree that the judgment of the Court of Appeal must be reversed insofar as it
reversed defendant‟s convictions on counts two and four.
I agree with the court‟s application of People v. Correa (2012) 54 Cal.4th
331 and People v. Jones (2012) 54 Cal.4th 350 to hold that defendant may be
punished separately for two violations of section 1202(a)(1) and of section
12021.1(a) based on his simultaneous possession of two firearms, but that
defendant may not be punished separately for violations of sections 12021(a)(1)
and 12021.1(a) based on possession of the same firearm.
LIU, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Sanders
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 2/1/11 – 5th Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S191341Date Filed: November 19, 2012
__________________________________________________________________________________
Court:
SuperiorCounty: Kern
Judge: Michael E. Dellostriitto
__________________________________________________________________________________
Counsel:
Robert Navarro, under appointment by the Supreme Court, for Defendant and Appellant.Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Janet E. Neeley and Catherine Tennant Nieto, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert Navarro1295 North Wishon Avenue, Suite 3
Fresno, CA 93728
(559) 497-5341
Catherine Tennant Nieto
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-6307
Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. The court limited review to the following issues: (1) Is possession of a firearm after conviction of a specified violent offense (Pen. Code, § 12021.1, subd. (a)) a necessarily included offense of possession of a firearm after conviction of a felony (Pen. Code, § 12021, subd. (a)(1))? (2) Was defendant properly sentenced to concurrent terms for his simultaneous possession of two firearms in violation of Penal Code section 12021, subdivision (a)(1)?
| Date: | Citation: | Docket Number: |
| Mon, 11/19/2012 | 55 Cal.4th 731. | S191341 |
| 1 | The People (Plaintiff and Respondent) Represented by Catherine Nieto Office of the Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Maurice D. Sanders (Defendant and Appellant) Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960 Represented by Robert Navarro 1295 N. Wishon Avenue, Suite 3 Fresno, CA |
| Opinion Authors | |
| Opinion | Justice Carol A. Corrigan |
| Concur | Justice Goodwin Liu |
| Brief Downloads | |
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| Jun 5, 2013 Annotated by David Berman | Facts: While conducting a parole search of the residence of defendant Maurice D. Sanders, police officers discovered two operable shotguns and ammunition. Defendant had previously been convicted of the felonies of making criminal threats (California Penal Code § 422), discharging a firearm with gross negligence (California Penal Code § 246.3) and kidnapping (California Penal Code § 207). As a result of these previous convictions, defendant was charged with both two counts of possessing a firearm after conviction of a felony (former California Penal Code § 12021(a)(1), reenacted without substantive change as California Penal Code § 29800(a)(1) –“offender in possession”) and two counts of possession of a firearm by a person convicted of a specific violent offense (former California Penal Code § 12021.1(a), reenacted without substantive change as California Penal Code § 29900(a)(1) –“violent offender in possession”). Defendant was also charged with numerous “enhancements”–charges made on the basis of defendant’s previous felony convictions that would likely increase his sentence were he convicted of the alleged crimes. Procedural History: Defendant was convicted on both counts of offender in possession and was sentenced to two concurrent terms of twenty-five years to life under California’s "Three Strikes Law," which allows defendants that have been convicted of three felonies to be subject to a twenty-five year to life sentence. The defendant was also convicted of both counts of violent offender in possession and was sentenced to another two terms of twenty-five years to life. However, the Court issued a judgment to prevent the execution of these two sentences for violent offender in possession (“a stay of execution”) under California Penal Code § 654, which prohibits multiple punishments when the same act is punishable in multiple ways under different provisions of the law. The defendant waived his right to a jury trial on the enhancement charges, and the trial judge struck down any punishment under these charges, invoking his right under California Penal Code § 1385 to dismiss an action “in furtherance of justice.” On appeal, the defendant argued that the offense of the violent offender in possession is inherently included in the offense of offender in possession. The California Attorney General conceded this point and the Court of Appeal reversed defendant’s convictions of violent offender in possession. The Court of Appeal also suspended (“stayed”) one of the defendant’s concurrent sentences for offender in possession under California Penal Code § 654. Defendant petitioned the Supreme Court of California challenging the sufficiency of the evidence against him. That challenge was denied, but on it’s own motion, the Court sought to review 1) if the offense of violent offender in possession of a firearm is necessarily included in the offense of offender in possession of a firearm and 2) if defendant’s sentence of concurrent terms for his simultaneous possession of two firearms was appropriate. Issues: 1) Can defendant’s single act of possessing multiple firearms warrant convictions under both violent offender in possession (former California Penal Code § 12021.1 (a))and offender in possession (former California Penal Code § 12021 (a)(1)? or is one of the offenses necessarily included within the other? 2) Can defendant be punished separately for each firearm he illegally possessed? Holding: 1: Yes, defendant’s single act of possessing multiple firearms can warrant convictions under both former California Penal Code § 12021.1(a) and former California Penal Code § 12021(a)(1). Neither statute is necessarily included in the other, as it would be possible to commit either offense without committing the other offense. Therefore, regardless of if the same conduct induced both convictions in this particular case, defendant’s separate convictions are not barred and the Court of Appeal erred in reversing any of defendant’s four convictions. 2: Yes, the defendant may be punished separately for each firearm he illegally possessed. The purpose of California Penal Code § 654 is to make sure that a defendant’s punishment correlates with culpability and a defendant who violates a statute multiple times (in this case a defendant with multiple guns) is more culpable than a defendant who only violates a statute once. Analysis 1: Analysis of the Claim that the Rule Against Multiple Convictions Bars Defendant from Being Convicted of Both “Offender in Possession” and “Violent Offender in Possession” The Court starts by laying out that under “the rule against multiple convictions,” when a defendant is convicted of both a greater and a “necessarily lesser included offense arising out of the same act or course of conduct” the conviction of the greater offense must stand and the lesser offense be reversed. However, if neither offense is necessarily included within the other, the defendant can be convicted of both but cannot be punished for both as under California law a defendant cannot be punished multiple times for a single act. In this case, the defendant and the Attorney General were in agreement that the rule against multiple convictions prevented the defendant from being convicted of both offenses, but in their appeals before the Supreme Court they disagreed as to which offense subsumed the other. The Court rejected both of their arguments, concluding they were separate offenses warranting separate convictions. First, the Court analyzed the Defendant’s argument that the offense of offender in possession necessarily includes the offense of violent offender in possession as anyone who commits a “specified violent offense” by nature has also committed a felony. To evaluate this claim, the Court looked to the test of People v. Reed that “in deciding whether multiple conviction is proper, a Court should consider only the statutory elements.” Under this test, if the greater offense cannot be committed without committing the lesser offense, then the defendant cannot be convicted of both offenses. To follow this test, the Court looked to the elements of former California Penal Code § 12021(a)(1) which bans possession of a firearm by 1) any person convicted of any felony, 2) any person convicted of an offense “enumerated in subdivision (a) (b) or (d) of former section 12001.6 of the California Penal Code or 3) any person addicted to a narcotic or drug. The Court explained that some of the offenses under former section 12001.6 of the California Penal Code were offenses that could be charged as either a felony or a misdemeanor (referred to in the case as “wobblers”). The Court then looked to the elements of the violent offender in possession statute, former California Penal Code § 12021.1(a), and found that in order to be guilty of this offense, a defendant must be in possession of a firearm after having been convicted of a specified “violent offense” as defined by former California Penal code § 12021.1(b), now §29905 of the California Penal Code. After comparing these elements, the Court concluded the offense of violent offender in possession is not necessarily included in the offense of offender in possession as there are multiple offenses, both felonies and misdemeanors, under former section 12001.6 that are not included in the list of specified violent offenses defined in former California Penal Code§ 12021.1(b). Therefore, either by committing one of these offenses not defined in former California Penal Code§ 12021.1(b), or by possessing a firearm while addicted to a narcotic drug, a defendant could be in violation of the offender in possession statute without being in violation of the violent offender in possession statute. While in this defendant’s specific case, his conduct was punishable under both statutes, the Court viewed the express statutory language of the violent offender in possession statute which states that it should be applied “notwithstanding” the offender in possession statute to mean that the offender in possession statute should not prevent the violent offender in possession statute from being applied. The Court determined that based on this statutory interpretation and its holdings in People v. Palacios and People v. Black, that as long it was possible “in the abstract” to commit the greater offense without committing the lesser offense, the defendant could be convicted under both statues. The Court then moved to the Attorney General’s argument that the violent offender in possession offense necessarily includes the offender in possession offense on the basis that anyone who commits one of the “specified violent offenses” laid out in the violent offender in possession statute has also violated the offender in possession statute. However, former California Penal Code§ 12021.1(b), which defines the crimes that brings a defendant under the violent offender in possession statute, includes violent offenses that are either wobblers or just misdemeanors and therefore would not fall under the reach of the “any felony” prong of the offender in possession statute. Furthermore, while there is overlap between former California Penal Code§ 12021.1(b) and the wobblers in the second prong of the offender in possession statute, the overlap is not perfect and there are misdemeanors that, if convicted of, would bar a defendant from possessing a firearm under the violent offender in possession statue without the defendant being barred from possessing a firearm under the offender in possession statute. The Court cites People v. Sanchez as an example of such a case where a defendant was guilty of violent offender in possession due to his previously being convicted of a misdemeanor that would not apply to the offender in possession statute. Therefore, the Court concluded that since a hypothetical defendant could be guilty of either violent offender in possession or offender in possession without being guilty of the other, the rule of multiple convictions did not apply and the appellate Court had erred in reversing defendant’s violent offender in possession conviction. 2: Analysis of if Defendant Can Be Punished Separately for Each Firearm in His Possession The Court then turned to its second question, if the defendant could be punished twice for having possessed two firearms. In making this determination, the Court followed its holding in People v. Correa that California Penal Code § 654 “does not bar multiple punishments for multiple violations of the same criminal statute” as it only applies when a single act is punishable under multiple statues. The Court explained that the purpose of section 654 is to ensure that the defendant is being punished in proportion to the culpability of his crime, and that one who has violated the statue multiple times is, in general, more culpable then one who has only violated the statue once. As the Court held in Correa, the Court concluded that a defendant who possesses multiple firearms is more culpable than a defendant who only possesses one, and therefore, the defendant can be punished for each firearm he possesses. While the defendant argued that the Court should not apply Correa to him because he had succeeded in this claim in the Court of Appeal, the Court dismissed this claim for the three reasons. First, the defendant did not offer any evidence of legal precedent to support his claim of detrimental reliance on his success in the appellate Court. Second, defendant was aware when he appealed to the Supreme Court for review that the Court had already resolved this issue of multiple punishment in Correa, as he noted this fact in his brief for the Court of Appeal. Lastly, the defendant was aware that the Court possessed the authority to order a review on its own initiative. 3: Analysis of Punishment Lastly, given its two holdings above, the Court analyzed the appropriate punishment for the defendant. The Court followed its ruling in Reed, recently affirmed in People v. Jones, that a defendant’s single act can result in multiple convictions but cannot, under California Penal Code § 654, result in multiple punishments. Therefore, while both of the defendant’s convictions may stand, he could not be punished twice for his single act of possessing firearms. The Court then had to determine which of his sentences should stand. The Court disagreed with the trial Court’s determination that his offender in possession conviction should be executed and his violent offender in possession conviction should be suspended. The Court looked to the language of California Penal Code § 654 which states that in this circumstance a defendant should be punished “under the provision that provides for the longest potential term of imprisonment.” The punishment for offender in possession was sixteen months, two years or three years in prison. The punishment for violent offender in possession was identical but with an additional provision that if probation was granted or if the sentence was suspended the defendant would still have to serve at least six months in a county jail. This additional mandatory jail time made the violent offender in possession statue the statue with the longest potential term of imprisonment, and therefore, the appropriate sentence. Additionally, the Court again looked to statutory construction and determined that the violent offender in possession statute’s express language that it should be enforced “notwithstanding” the violent possession in offender statute. In light of this, the Court reasoned it would be inconsistent with the intent of the legislature to suspend the punishment of a violent offender in possession violation in favor of punishing an offender in possession violation. Overall, the Court concluded that the defendant may be convicted of multiple violations of both violent offender in possession and offender in possession for his possession of multiple firearms in violation of his parole. However, he may not be punished for both offenses and must be punished under the violent offender in possession statute as it has the potential to carry the longest prison sentence. The Court then remanded the case for continued proceedings consistent with the Supreme Court’s opinion. Concurring Opinion by Judge Liu Judge Liu’s brief concurrence agrees with both holdings of the Court but relies more heavily on legislative intent to get to the holding that the rule of multiple convictions does not apply. Judge Liu emphasizes that the purpose of the doctrine of lesser included offenses is to protect against “double jeopardy” (a constitutional principal that one cannot be tried twice for the same crime) but that punishing necessarily included offenses within a greater offense does not constitute double jeopardy. He contends that the rule against multiple convictions is a “judicially created doctrine” that relies on the assumption that ordinarily, legislatures do not intend to punish the same offense under multiple statutes. However, he argues that the inclusion of the phrase “notwithstanding subdivision (a) of section 12021” in the violent offender in possession standard makes it clear that in this instance the legislature did intend to be able to punish the same offense under two statues and a defendant convicted of offender in possession can also be convicted of violent offender in possession. Tags: Offender in Possession, Violent Offender in Possession, Rule Against Multiple Convictions, Former California Penal Code § 12021(a)(1), Former California Penal Code 1021.1(a), California Penal Code § 654, Former California Penal Code § 12021.1 (b), Criminal Law, Possession of a Firearm, Possession of Multiple Firearms, Concurrent Sentencing, Duplicate Charge, Statutory Interpretation, Statutory Elements, Specific Violent Offense, Parole Search, Felony Conviction, Stay of Execution, Concession, Enhancement, California Penal Code § 1384, Making Criminal Threats, Discharging a Firearm with Gross Negligence, Kidnapping, 25 Years to Life Sentence, Wobbler, Misdemeanor, Culpability, Detrimental Reliance, Three Strikes Law, Mandatory Jail Time, Lesser Included Offense, Greater Offense, Double Jeopardy, California Penal Code § 29800, California Penal Code § 29900, California Penal Code § 29905 David Berman |
