Filed 8/16/07 (precedes in sequence companion opinion, S132980, also filed 8/16/07)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S132605
v.
Ct.App. 3 C042448
AARON PATRICK SLOAN,
Placer County
Defendant and Appellant.
Super. Ct. No. 6621501
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 (Pearson).) Our recent decision in
People v. Reed (2006) 38 Cal.4th 1224 (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.” (Id. at p. 1231.) Like
Reed, this case involves multiple charged crimes. Accordingly, the statutory or
legal elements test applies. Under that test, enhancements are neither recognized
nor considered in determining whether the defendant can be convicted of multiple
charged crimes based on necessarily included offenses. This result is also in
accord with the long-standing rule that enhancements may not be considered as
1
part of an accusatory pleading for purposes of identifying lesser included offenses.
(See People v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101 (Wolcott).)
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 Penal Code section
654,1 nor principles of federal double jeopardy protection, require us to draw an
exception from Reed’s bright-line test in this case simply because multiple
convictions otherwise permitted under section 954 and the legal elements test in
theory might give rise to impermissible multiple punishment in future criminal
proceedings should the defendant reoffend upon release from prison. The
Legislature has clearly provided that a person may be convicted of, although not
punished for, more than one crime arising out of the same act or course of
conduct. (§§ 654, 954.) There is no evidence before us that defendant has
reoffended or faces multiple punishment due to recidivist sentencing in any
unrelated criminal proceeding. The argument that improper multiple punishment
might stem from future use of multiple convictions under recidivist sentencing
statutes like the “Three Strikes” law raises a question that is entirely speculative
on these facts and must await a case in which it is squarely presented. (See People
v. Sanchez (2001) 24 Cal.4th 983, 993.)
We therefore conclude the judgment of the Court of Appeal, which is
inconsistent with the rule announced in Reed, must be reversed.
1
All further statutory citations are to the Penal Code unless otherwise
indicated.
2
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 conviction for
the same offense (§ 273.5, subd. (e)(1)); assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)); battery with serious bodily injury
(§ 243, subd. (d)); and dissuading a witness (§ 136.1, subd. (b)(1)). Enhancement
allegations for personal infliction of great bodily injury under circumstances
involving domestic violence were found true under the corporal injury and
aggravated assault counts. (§ 12022.7, subd. (e).) An allegation that defendant
personally inflicted great bodily injury on a person who was not an accomplice
was found true under the battery with serious bodily injury count, making that
offense, like the aggravated assault offense, a serious felony within the meaning of
section 1192.7, subdivision (c)(8).
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 and 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 section 654.
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, section 654, and federal double jeopardy principles.
We granted both the People’s and defendant’s petitions for review, designating the
3
People as petitioner in this court for purposes of briefing and argument. (Cal.
Rules of Court, Former rule 28.2; see now rules 8.512, 8.520.)
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 and 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 section 654’s ban on multiple punishment as well as principles of federal
double jeopardy protection.
As we explained in Reed, supra, 38 Cal.4th 1224, “In general, a person may
be convicted of, although not punished for, more than one crime arising out of the
same act or course of conduct. ‘In California, a single act or course of conduct by
a defendant can lead to convictions “of any number of the offenses charged.”
(§ 954, italics added; People v. Ortega (1998) 19 Cal.4th 686, 692.)’ (People v.
Montoya (2004) 33 Cal.4th 1031, 1034.) Section 954 generally permits multiple
convictions. Section 654 is its counterpart concerning punishment. It prohibits
multiple punishment for the same ‘act or omission.’ When section 954 permits
multiple convictions, but section 654 prohibits multiple punishment, the trial court
must stay execution of sentence on the convictions for which multiple punishment
2
The terms “necessarily included offense” and “lesser included offense”
have been used interchangeably by the courts in determining whether the rule
against multiple convictions applies in any given case. (See People v. Ortega
(1998) 19 Cal.4th 686, 704 (dis. opn. of Chin, J.).)
4
is prohibited. (People v. Ortega, supra, at p. 692; People v. Pearson (1986) 42
Cal.3d 351, 359-360.)” (Reed, supra, 38 Cal.4th at pp. 1226-1227.)
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 section 654. With one exception discussed
below—the potential use of those convictions as “strikes” under the Three Strikes
law in a subsequent prosecution for any felony (see §§ 1192.7, subd. (c)(8), 667,
subds. (b)-(i), 1170.12)—multiple punishment is not at issue here. Instead, we are
concerned with multiple convictions. (Reed, supra, 38 Cal.4th at p. 1227.)
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.) . . . [¶] 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. (§ 1159;
People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) The reason for this rule is
settled. ‘ “This reasoning rests upon a constitutional basis: ‘Due process of law
requires that an accused be advised of the charges against him in order that he may
have a reasonable opportunity to prepare and present his defense and not be taken
by surprise by evidence offered at his trial.’ [Citation.]” ’ (People v. Lohbauer,
supra, at p. 368.) The required notice is provided as to any charged offense and
any lesser offense that is necessarily committed when the charged offense is
committed. (Id. at pp. 368-369.)” (Reed, supra, 38 Cal.4th at p. 1227.)
5
Two tests have traditionally been applied in determining whether an
uncharged offense is necessarily included within a charged offense—the statutory
or legal “elements” test and the “accusatory pleading” test. “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.
Under the accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the latter is necessarily
included in the former. [Citation.]” (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
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 section 273.5, subdivision (e)(1) (see
count I) is considered without the great bodily injury enhancement found true
under that count, then assault by means of force likely to produce great bodily
injury (see count II) is not a necessarily included offense, as the statutory elements
of the former offense do not require proof of intent to inflict, or the actual
infliction of, great bodily injury. Corporal injury resulting in a “ ‘traumatic
condition’ ” can be a wound or external or internal injury, whether minor or
serious. (§ 273.5, subd. (c).) In contrast, if the conviction of willful infliction of
corporal injury on a spouse is considered together with the great bodily injury
3
It should be noted we are here concerned only with charged offenses and
pled enhancements, not with uncharged lesser offenses or questions involving
notice to the defendant and the trial court’s obligation to instruct sua sponte with
regard to uncharged lesser offenses.
6
enhancement found true under that count, then all of the statutory elements of
assault by means of force likely to produce great bodily injury, of which defendant
was also charged and convicted, would be met.
Similarly, “[s]erious bodily injury’ is the essential equivalent of ‘great
bodily injury’ [citation].” (People v. Otterstein (1987) 189 Cal.App.3d 1548,
1550; People v. Corning (1983) 146 Cal.App.3d 83, 90.) 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.
In Reed, the defendant was charged with being a felon in possession of a
firearm (§ 12021, subd. (a)(1)), carrying a concealed firearm (§ 12025, subd.
(a)(2)), and carrying a loaded firearm while in a public place (§ 12031, subd.
(a)(2)(A)). The information further alleged that the defendant was a convicted
felon in connection with the commission of each offense. (Reed, supra, 38 Cal.4th
at pp. 1226, 1228.) “Accordingly, as charged, defendant could not commit the
crimes of carrying a concealed firearm and carrying a loaded firearm while in a
public place without also being a felon in possession of a firearm.” (Id. at
p. 1228.)
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
7
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; People v. Watterson [(1991)] 234 Cal.App.3d [942,] 947,
fn. 15; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171.) 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 elements of the crimes) in deciding
whether a defendant had adequate notice of an uncharged lesser offense so as to
permit conviction of that uncharged offense.’ (People v. Montoya, supra, 33
Cal.4th at p. 1039 (conc. opn. of Chin, J.).) But this purpose has no relevance to
deciding whether a defendant may be convicted of multiple charged offenses. ‘[I]t
makes no sense to look to the pleading, rather than just the legal elements, in
8
deciding whether conviction of two charged offenses is proper. Concerns about
notice are irrelevant when both offenses are separately charged . . . .’ (Ibid.)”
(Reed, supra, 38 Cal.4th at pp. 1228-1230.)
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. (§ 954.) We see no reason to prohibit multiple convictions that
section 954 permits simply because of the way the offenses are charged. ‘To
immunize’ defendant from conviction of [assault by means of force likely to
produce great bodily injury and battery with serious bodily injury simply because
a great bodily injury enhancement was found true under the charge of infliction of
corporal injury on a spouse] ‘would be irrational and would frustrate the strong
legislative purpose behind [all three] statutes.’ (People v. Scheidt, supra, 231
Cal.App.3d at p. 171.)” (Reed, supra, 38 Cal.4th at p. 1230.)
The holding in In re Jose H. (2000) 77 Cal.App.4th 1090 (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
9
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 Jose H. court recognized it “must reconcile the direct, clear statute
authorizing multiple convictions for ‘different statements of the same offense’
[(§ 954)] with the rule recognized in Pearson prohibiting multiple convictions
based on necessarily included offenses.” (Jose H., supra, 77 Cal.App.4th at
p. 1095.) The court concluded that “section 954 appears to authorize this manner
of charging and the limited case law created exception to section 954 described in
Pearson does not prevent it. Appellant cites no cases, and our research discloses
none, that permit considering enhancements for determining lesser included or
necessarily included offenses for any purpose. Because the rule recognized in
Pearson carves out an exception to a statute that appears to specifically authorize
multiple convictions based on the same conduct, we decline to accept appellant’s
invitation to expand the definition of necessarily included offenses beyond its
existing boundaries. Those boundaries limit our consideration of whether count I
and count II are necessarily included offenses of one another to the elements of the
offenses charged, not the stated offenses with their attached enhancements.
Assault with force likely to produce great bodily injury is not a lesser included
offense of battery with serious bodily injury. (People v. Corning (1983) 146
Cal.App.3d 83, 89-91.) The trial court properly sustained counts I and II of the
petition.” (Jose H., at pp. 1095-1096.)
The Court of Appeal in this case found that an additional factor—the
4
Wolcott did not involve the rule against multiple convictions, but instead
held that enhancements are not considered part of an accusatory pleading for
purposes of defining or instructing sua sponte on lesser offenses of which a
defendant might be convicted. (Wolcott, supra, 34 Cal.3d at pp. 96, 100-101.)
10
potential for future multiple punishment—a factor not implicated on the facts of
Reed, further supports 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 is not being punished for those two
convictions in this proceeding as he is 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.
(Pen. Code, § 1192.7, subd. (c)(8); id., § 667, subds. (b)-(i); id.§ 1170.12.)” The
Court of Appeal concluded that both federal double jeopardy principles and
section 654 would be violated if the convictions were allowed to stand,
notwithstanding that execution of sentence on those counts was stayed pursuant to
section 654 in the current proceeding.
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 Clause ‘protects
against a second prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.’ [Citation.]” (Brown v. Ohio
(1977) 432 U.S. 161, 165, italics added.) The first two categories of protection
afforded by the double jeopardy clause, by their express terms, are clearly not
implicated here because we are directly concerned only with multiple convictions
11
in a unitary trial, not multiple punishments in successive unrelated criminal
proceedings. Likewise, with regard to the third category of double jeopardy
protection—the prohibition of “multiple punishments for the same offense” (432
U.S. at p. 165)—the Supreme Court has made clear that “[t]he [Double Jeopardy]
Clause protects only against the imposition of multiple criminal punishments for
the same offense [citations] . . . and then only when such occurs in successive
proceedings, see Missouri v. Hunter, 459 U.S. 359, 366 (1983).” (Hudson v.
United States (1997) 522 U.S. 93, 99, italics added; original italics omitted.)
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.) 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 (§ 12022.7,
subd. (e)), and made clear that a person may be convicted of more than one crime
arising out of the same act or course of conduct in a unitary criminal proceeding.
(§ 954.) In short, federal double jeopardy principles do not support the rationale
and holding of the Court of Appeal’s conclusions below.
With regard to whether section 654’s proscription against multiple
punishment for offenses arising out of the same act or course of conduct would be
violated if multiple convictions in a unitary trial were later used to impose
punishment under a sentencing scheme like the Three Strikes law in future
unrelated criminal proceedings, we have twice before indicated that the question
must await an appropriate case in which it is factually and squarely presented.
(See People v. Sanchez, supra, 24 Cal.4th at p. 993; People v. Benson (1998) 18
12
Cal.4th 24, 36, & fn. 8.)5 In this case there is no evidence before us that defendant
has reoffended or faces the prospect of multiple punishment due to sentencing in
any unrelated criminal proceeding. The mere possibility of future multiple
punishment affords no sound basis for disregarding the mandate of section 954,
which clearly permits multiple convictions arising from the same act or course of
conduct in the present criminal proceeding. The possibility of future multiple
punishment is always speculative, yet the holding of the Court of Appeal in this
case would require that multiple convictions otherwise permissible under section
954 must always be vacated in a present criminal proceeding simply because they
may lead to future impermissible multiple punishment if the defendant reoffends,
and if the prosecution then seeks to use those convictions as a basis for sentence
enhancement in the future criminal proceeding.
Moreover, multiple convictions permitted under section 954 serve an
important and legitimate function in criminal sentencing. Where one of two
multiple convictions valid under section 954 is overturned on appeal or habeas
corpus, the remaining and intact conviction, even though it arose from the same
facts or indivisible course of conduct as the conviction that is being reversed, may
be substituted in its stead, with the stay of execution of sentence lifted at
resentencing, so that punishment on the valid conviction can be imposed in the
interests of justice. This legitimate future use of multiple convictions would be
5
The decision in Benson made clear that the mere fact that a conviction was
stayed pursuant to section 654 in an earlier proceeding does not in itself preclude
use of the conviction as a strike under the Three Strikes law in a subsequent
proceeding. We observed that the language of the Three Strikes law (§ 1170.12,
subd. (b)(1)) “unequivocally establishes that the electorate intended to qualify as
separate strikes each prior conviction that a defendant incurred relating to the
commission of a serious or violent felony, notwithstanding the circumstance that
the trial court, in the earlier proceeding, may have stayed sentence on one or more
of the serious or violent felonies under compulsion of the provisions of section
654.” (People v. Benson, supra, 18 Cal.4th at p. 31.)
13
undermined by the expanded multiple conviction rule adopted by the Court of
Appeal in this case.
Last, defendant argues that under the high court’s holding in Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi), and this court’s decision in People v.
Seel (2004) 34 Cal.4th 535 (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 ( Aug. 16, 2007, S132980) __ Cal.4th ___ (Izaguirre), also filed today,
we have rejected the identical argument. (Izaguirre, supra, at p. __ [p. 2].)
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 requires the elements of a crime to be
proved beyond a reasonable doubt because they expose the defendant to
punishment; likewise, the elements of a sentence enhancement must be proved
beyond a reasonable doubt if there is exposure to increased punishment.
[Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.) The rule
is compelled by the federal Constitution’s Fifth Amendment right to due process
and Sixth Amendment right to jury trial, made applicable to the states through the
Fourteenth Amendment. (26 Cal.4th at p. 324.) It is not grounded on principles of
double jeopardy protection. (See Izaguirre, supra, __ Cal.4th at pp. __-__ [pp. 7-
9].)
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
14
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, __ Cal.4th at pp. __-__
[pp. 7-9].) 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 section 954 which clearly authorizes multiple convictions on the facts
of this case. It further conflicts with the rationale and holding of Reed, supra, 38
Cal.4th 1224, and misconstrues federal double jeopardy law. Moreover, this case,
properly viewed, implicates the multiple conviction rule as applied in the present
proceeding, not section 654’s ban on multiple punishment as it might come into
play in future criminal proceedings.
15
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.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
16
CONCURRING OPINION BY MORENO, J.
The majority in People v. Reed (2006) 38 Cal.4th 1224 held that a court
never may consider the language of the accusatory pleading in determining
whether multiple convictions are proper. The majority concluded that the
defendant in that case properly was convicted of being a felon in possession of a
firearm, carrying a concealed firearm, and carrying a loaded firearm in public,
despite the circumstance that the counts charging him with carrying a concealed
weapon and carrying a loaded weapon in public alleged that the defendant was a
felon. Applying its broad new rule that the language of the accusatory pleading
never may be considered in determining whether multiple convictions are
precluded because the offenses are necessarily included within each other, the
majority held that multiple convictions were proper in Reed because a person who
carries a concealed weapon, or carries a loaded weapon in public, does not
necessarily also commit the crime of being a felon in possession of a firearm.
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
1
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.) 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 “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.).)
In the present case, the majority relies upon this court’s decision in People
v. Reed, supra, 38 Cal.4th 1224, as well as our decision in People v. Wolcott,
supra, 34 Cal.3d 92, to hold that enhancement allegations may not be considered
for purposes of the rule prohibiting multiple convictions based on necessarily
included offenses. In my view, our decision in Wolcott controls here and, for that
reason, I reach the same result as does the majority without the need to apply the
broad rule created in Reed that the language of the accusatory pleading never may
be considered in determining whether multiple convictions are permitted.
MORENO, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Sloan
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 126 Cal.App.4th 1148
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S132605Date Filed: August 16, 2007
__________________________________________________________________________________
Court:
SuperiorCounty: Placer
Judge: John L. Cosgrove
__________________________________________________________________________________
Attorneys for Appellant:
John Doyle and William J. Arzbaecher, under appointments by the Supreme Court, for Defendant andAppellant.
__________________________________________________________________________________
Attorneys for Respondent:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William J. ArzbaecherCentral California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816-4736
(916) 441-3792
George M. Hendrickson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5270
Opinion Information
| Date: | Docket Number: |
| Thu, 08/16/2007 | S132605 |
Parties
| 1 | Sloan, Aaron Patrick (Defendant and Appellant) Represented by John Doyle Attorney at Law Pier 29 Annex San Francisco, CA |
| 2 | Sloan, Aaron Patrick (Defendant and Appellant) Represented by William Joseph Iii Arzbaecher Central California Appellate Program 2407 "J" Street, Suite 301 Sacramento, CA |
| 3 | The People (Plaintiff and Respondent) Represented by George M. Hendrickson Office of the Attorney General 1300 "I" Street Sacramento, CA |
| Disposition | |
| Aug 16 2007 | Opinion: Reversed |
| Dockets | |
| Mar 28 2005 | Petition for review filed by counsel for aplt c/a rec req |
| Mar 28 2005 | 2nd petition for review filed by resp |
| Mar 30 2005 | Received Court of Appeal record one doghouse |
| Apr 18 2005 | Request for depublication (petition for review pending) By counsel for respondent {The People}. |
| May 13 2005 | Time extended to grant or deny review To June 24, 2005. |
| Jun 8 2005 | Petition for review granted (criminal case) Petitions for review GRANTED. Respondent is designated petitioner in this court for purposes of briefing and argument. (Cal. Rules of Court, rule 29.1(a)(6).) The parties are directed to brief and allegations be considered in determining when a lesser offense is necessarily included in a charged offense as pled in the information or indictment? (Cal. Rules of Court, rule 29.1.) Briefing or other further action on the issues raised in appellant's petition for review is deferred pending consideration and disposition of a related issue in People v. Black, S126182 and People v. Towne, S125677 (see Cal. Rules of Court, rule 28.2(d)(2)), or pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Jun 15 2005 | Counsel appointment order filed Upon request of appellant for appoinment of counsel, John Doyle is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty days from the date respondent's opening brief on the merits is filed. |
| Jun 17 2005 | Received additional record one doghouse (volume 2) |
| Jul 8 2005 | Opening brief on the merits filed Respondent (The People) by counsel. |
| Jul 22 2005 | Received: Amended Certificate of Compliance. |
| Aug 5 2005 | Request for extension of time filed for Answer Brief on the Merits to September 7, 2005. |
| Aug 9 2005 | Extension of time granted to and including September 7, 2005. |
| Sep 6 2005 | Request for extension of time filed to file and serve Appellant's Answer Brief on the Merits to and including September 21, 2005. |
| Sep 20 2005 | Extension 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 September 21, 2005. |
| Sep 21 2005 | Answer brief on the merits filed Appellant ( Sloan). |
| Oct 7 2005 | Request for extension of time filed by Respondent to file the reply brief on the mertis. Asking to Nov. 10, 2005. |
| Oct 12 2005 | Compensation awarded counsel Atty Doyle |
| Oct 13 2005 | Extension of time granted to November 10, 2005 for respondent to file the reply brief on the merits. |
| Nov 10 2005 | Request for extension of time filed respondent ( Attorney General) t filed the reply brief on the merits. asking to Dec. 12, 2005. |
| Nov 17 2005 | Extension of time granted to December 12, 2005 for respondent Attorney General to file the reply brief on the merits. No further extensions of time are comtemplated. |
| Dec 9 2005 | Reply brief filed (case fully briefed) the People, plaintiff and respondent George M. Hendrickson, Deputy Attorney General |
| Mar 17 2006 | Association of attorneys filed for: Application for order associating William Arzbaecher (CCAP) for purpose of oral argument for appellant. |
| Mar 27 2006 | Order filed Upon application of appellant and good cause appearing, it is ordered that William Arzbaecher is hereby associated as counsel to represent appellant for purposes of presenting oral argument in the above case now pending in this court. |
| May 26 2006 | Filed letter from: William Arzbaecher, counsel for appellant. "... respectfully request that oral argument not be scheduled during the week of September 5-8, 2006...." |
| Aug 8 2006 | Received additional record On red envelope (Confidential). |
| Apr 19 2007 | Order filed The parties are invited to file supplemental letter briefiing to the following question: How does the court's decision in People v. Reed (2006) 38 Cal.4th 1224, impact the issue on review in this court? The parties may file simultaneous letter briefs on this question in this court on or before May 9, 2007, and may file simultaneous reply briefs in this court on or before by May 21, 2007. |
| May 2 2007 | Case ordered on calendar to be argued on Thursday, May 31, at 1:30 p.m., in San Francisco |
| May 9 2007 | Letter brief filed the People, respondent George Hendrickson, dep A.G. |
| May 9 2007 | Letter brief filed Aaron Sloan, defendant and appellant John Doyle, counsel |
| May 21 2007 | Letter brief filed (response) the People, respondent George Hendrickson, Dep. A.G. |
| May 22 2007 | Letter brief filed (response) Aaron Sloan, defendant and appellant John Doyle, counsel (timely per CRC 8.25) |
| May 31 2007 | Cause argued and submitted |
| Aug 15 2007 | Notice of forthcoming opinion posted |
| Aug 16 2007 | Opinion filed: Judgment reversed and remanded to the Court of Appeal for further proceedings. Majority Opinion by Baxter, J. ----------------------------joined by George, C.J., Kennard, Werdegar, Chin, Corrigan, JJ. Concurring Opinion by Moreno, J. |
| Aug 31 2007 | Rehearing petition filed Aaron Sloan, defendant and appellant John Doyle, counsel |
| Sep 6 2007 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 14, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 31 2007 | Rehearing denied |
| Oct 31 2007 | Remittitur issued (criminal case) |
| Dec 26 2007 | Note: case record sent to C/A 3rd District |
| Dec 26 2007 | Returned record 2 doghouses, confidental envelope shipped on Wednesday, 12/26/07 via UPS Ground. |
| Feb 28 2008 | Compensation awarded counsel Atty Doyle |
| Briefs | |
| Jul 8 2005 | Opening brief on the merits filed |
| Sep 21 2005 | Answer brief on the merits filed |
| Dec 9 2005 | Reply brief filed (case fully briefed) |
