People v. Correa , 54 Cal. 4th 331 ( 2012 )

Filed 6/21/12 (S163273 & S179552, both filed 6/21/12, are companion cases; S163273 is the lead case)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S163273
v. )
) Ct.App. 3 C054365
VICTOR CORREA, )
) Sacramento County
Defendant and Appellant. ) Super. Ct. No. 06F1135
____________________________________)
After police found defendant hiding in a closet with a cache of guns, he was
convicted of seven counts of being a felon in possession of a firearm. (Former
Pen. Code, § 12021, subd. (a)(1).) 1 We initially limited review to the question
whether imposing sentence on more than one of these counts violated section
654‟s prohibition against multiple punishment for the same criminal act. We
requested supplemental briefing on the question whether section 654 applies to
multiple violations of the same criminal statute.
1 Former Penal Code section 12021, subdivision (a), is now section 29800,
subdivision (a), which became effective January 1, 2012. (Stats. 2010, ch. 711,
§ 6.) The Law Revision Commission Comments to section 29800 make clear that
the provision was carried over “without substantive change.” (Nonsubstantive
Reorganization of Deadly Weapon Statutes (June 2009) 38 Cal. Law Revision
Com. Rep. (2009) p. 758.) We will refer to the provision by its former
designation.
Further statutory references are to the Penal Code, unless otherwise
indicated.
1
We hold as follows. By its plain language section 654 does not bar
multiple punishment for multiple violations of the same criminal statute. Contrary
dictum in a footnote to Neal v. State of California (1960) 55 Cal.2d 11, 18,
footnote 1 (Neal), is disapproved. We do not apply this interpretation to defendant
because the law has been unsettled in this area. Even so, defendant‟s sentence did
not violate section 654 because specific statutory authority makes possession of
each weapon a separate offense. (Former § 12001, subd. (k).)2
I. FACTUAL AND PROCEDURAL BACKGROUND3
In response to a report that someone was taking firearms into a house,
Officer Kevin Howland went to the residence of defendant‟s parents. Howland
saw defendant get out of a car and walk into the garage. The car had been
reported stolen. Other people left the house and were detained, but defendant
barricaded himself inside. After firing tear gas into the house, a SWAT team
entered. Defendant had hidden in a closet under some stairs and was stuck.
Officers had to break open the back wall of the closet to extricate him. Seven
rifles and shotguns of varying calibers and gauges were found in the closet with
him. Ammunition fitting the weapons was found in the closet, an upstairs
2 Former section 12001, subdivision (k), is now section 23510. Again, the
Law Revision Commission Comments make clear that the provision was carried
over “without substantive change.” (Nonsubstantive Reorganization of Deadly
Weapon Statutes (June 2009) 38 Cal. Law Revision Com. Rep., supra, at p. 479.)
We will refer to the provision by its former designation.
3 Because of the narrow legal question under review, we have condensed the
factual background in the Court of Appeal‟s opinion. We accept the Court of
Appeal‟s statement of facts unless a party calls the Court of Appeal‟s attention to
any alleged omission or misstatement, in a petition for rehearing. (Cal. Rules of
Court, rule 8.500(c)(2).) Neither party here sought rehearing.
2
bedroom, and the garage. A neighbor testified that she had seen defendant with a
shotgun or rifle, and that she had also seen a handgun in his bedroom.
A jury convicted defendant of seven counts of being a felon in possession
of a firearm4 and one count of receiving a stolen vehicle.5 Defendant waived his
right to a jury trial on allegations of prior convictions. The court found that he had
two felony convictions for forcible sodomy,6 which qualified him for life
sentencing under the three strikes law.7 It sentenced him to eight consecutive
terms of 25 years to life, one for each firearm possession and one for receiving a
stolen vehicle.
The Court of Appeal affirmed the judgment. We affirm the judgment of the
Court of Appeal.
II. DISCUSSION
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. An
acquittal or conviction and sentence under any one bars a prosecution for the same
act or omission under any other.”
In Neal, supra, 55 Cal.2d 11, the court added a “gloss” to section 654 that
has been a subject of continuing controversy and given rise to much confusion.
Neal threw gasoline into a couple‟s bedroom and ignited it, intending to kill the
4 Former section 12021, subdivision (a)(1). The jury did not convict
defendant of possessing two other guns found elsewhere in the house.
5 Section 496d, subdivision (a).
6 Section 286, subdivision (d).
7 Section 1170.12, subdivision (c)(2)(A)(ii).
3
occupants. The victims were severely burned, but survived. Convicted of arson
and two counts of attempted murder, Neal contended he could not be punished for
the arson. (Neal, at p. 15.)
Even though section 654 refers to an “act or omission,” the Neal court
opined that “[f]ew if any crimes . . . are the result of a single physical act.” (Neal,
supra, 55 Cal.2d at p. 19.) Accordingly, the relevant question is typically whether
a defendant‟s “ „course of conduct . . . comprised a divisible transaction which
could be punished under more than one statute within the meaning of section
654.‟ ” (Ibid., quoting People v. Brown (1958) 49 Cal.2d 577, 591.) To resolve
this question, the Neal court announced the following test: “Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within
the meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may be punished for
any one of such offenses but not for more than one.” (Neal, at p. 19.)
In People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), this court criticized
Neal‟s analysis, but declined the Attorney General‟s invitation to reconsider the
Neal “gloss.” “While sympathetic with some of the Attorney General‟s
arguments, we conclude that we may not now overrule Neal, supra, 55 Cal.2d 11,
and its progeny. For three decades, the Legislature has enacted new sentencing
statutes in light of those cases. Although the Legislature has not expressly ratified
the Neal rule, it has impliedly accepted it. In some respects, the sentencing
structure we have today would be different but for the Neal line of cases. To
overrule them now would result in a sentencing scheme intended by no one.
Principles of stare decisis compel us to adhere to the Neal test. Any changes must
be made by the Legislature, not this court.” (Latimer, at pp. 1205-1206.)
4
The court stressed, however, that “nothing we say in this opinion is
intended to cast doubt on any of the later judicial limitations of the Neal rule.”
(Latimer, supra, 5 Cal.4th at p. 1216.)
In order to parse out the applicable precedent and to identify the flaw in the
Neal footnote, it is important to distinguish among three related but distinct
concepts: multiple prosecution, multiple conviction, and multiple punishment.
Section 654, subdivision (a), addresses multiple punishment and multiple
prosecution. The multiple prosecution bar, set out in the last sentence of
subdivision (a), is a “ „procedural safeguard against harassment and is not
necessarily related to the punishment to be imposed . . . .‟ ” (People v. Britt
(2004) 32 Cal.4th 944, 950 (Britt), quoting Neal, supra, 55 Cal.2d 11, 21.) This
case involves only the multiple punishment aspect of section 654.
It is also important to recognize that section 654 concerns only multiple
punishment, not multiple convictions. “It is well settled that section 654 protects
against multiple punishment, not multiple conviction.[8] (People v. McFarland
(1962) 58 Cal.2d 748, 762.)” (People v. Harrison (1989) 48 Cal.3d 321, 335
(Harrison).) As we explained in People v. Reed (2006) 38 Cal.4th 1224, 1226-
1227, “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.)
8 As we explain in footnote 9, post, at the time that Neal, supra, 55 Cal.2d
11, was decided, courts that found section 654 applicable generally set aside the
conviction, and not merely the punishment. (See People v. McFarland (1962) 58
Cal.2d 748, 763 (McFarland).)
5
Section 954 generally permits multiple conviction. Section 654 is its counterpart
concerning punishment. It prohibits multiple punishment for the same „act or
omission.‟ When 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. (People v. Ortega,
supra, at p. 692; People v. Pearson (1986) 42 Cal.3d 351, 359–360.) . . . [¶] 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.)”
This case involves multiple violations of the same statute, while the express
language of section 654 applies to an act that is punishable in different ways by
different provisions of law. That language notwithstanding, in the Neal footnote
the majority remarked: “Although 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. (People v. Brown, 49 Cal.2d 577, 591; see People v. Roberts, 40
Cal.2d 483, 491; People v. Clemett, 208 Cal. 142, 144; People v. Nor Woods, 37
Cal.2d 584, 586.)” (Neal, supra, 55 Cal.2d at p. 18, fn. 1, italics added.)
We asked the parties to file supplemental briefs addressing the following
questions regarding this dictum.
(1) Does the authority cited in this footnote support the italicized
language?
6
(2) In light of the language and purpose of section 654, is it reasonable to
apply it to bar multiple punishment for multiple violations of the same provision
of law?
(3) Should this court reconsider footnote 1 from Neal, supra, 55 Cal.2d at
page 18, and instead conclude that Penal Code section 654 does not govern
multiple punishment for violations of the same provision of law?
In his supplemental letter brief, defendant raised two related issues. As
explained below, although the Neal footnote was dictum, subsequent decisions of
the Court of Appeal have applied section 654 to multiple punishment for
violations of the same provision of law. The question arises whether stare decisis
and legislative acceptance compel us to continue to follow the Neal footnote, just
as they required us to follow the Neal gloss in Latimer, supra, 5 Cal.4th 1203.
Further, may a contrary rule be applied to defendant without violating the due
process and ex post facto clauses of the United States Constitution?
A. Reconsideration of the Neal Footnote
(1)
We conclude that, in addition to being dictum, the Neal footnote is an
incorrect statement of law, unsupported by the authority it cites. The cases relied
upon do not stand for the proposition that the “basic principle” enunciated in
section 654 “preclude[s] double punishment when an act gives rise to more than
one violation of the same Penal Code section . . . .” (Neal, supra, 55 Cal.2d 11,
18, fn 1.) Three of the four cases cited in the Neal footnote involved multiple
convictions that were held to be improper without any reliance on section 654. 9
9 As we have noted, at the time that Neal, supra, 55 Cal.2d 11, was decided,
courts that found section 654 applicable generally set aside the conviction, and not
merely the punishment. (McFarland, supra, 58 Cal.2d 748, 763.) The now-
familiar procedure of staying the punishment while preserving the conviction did
(footnote continued on next page)
7
Those three cases, discussed below, are People v. Clemett (1929) 208 Cal. 142(Clemett); People v. Nor Woods (1951) 37 Cal.2d 584 (Nor Woods); and People v.
Roberts (1953) 40 Cal.2d 483 (Roberts). By contrast, there is no suggestion here
that multiple convictions were improper. Defendant was found hiding under the
stairs with seven guns. He was convicted of seven counts of being a felon in
possession of a firearm. (Former § 12021, subd. (a)(1).) Former section 12001,
subdivision (k), provided that the possession of “each firearm . . . shall constitute a
distinct and separate offense” under, among other provisions, section 12021.
Clemett, supra, 208 Cal. 142, involved a prosecution under a statute that
prohibited possession or operation of a still; the defendant was convicted of one
count of possessing and one count of operating the same still, on the same day.
This court granted review “solely for the reason that we entertained grave doubt as
to whether two separate crimes had been committed . . . .” (Id. at p. 143.) “As
early as People v. Shotwell, 27 Cal. 394, and People v. Frank, 28 Cal. 507, it was
held that co-operative acts constituting but one offense when committed by the
same person at the same time, when combined, charge but one crime and but one
punishment can be inflicted as one offense. „Where a statute makes two or more
distinct acts connected with the same transaction indictable, each one of which
(footnote continued from previous page)
not develop until later. (This historical development is reviewed in People v.
Benson (1998) 18 Cal.4th 24, 38-40 (dis. opn. of Chin, J.).) Indeed, after it found
that section 654 prohibited multiple punishment for arson in addition to two
attempted murders, the Neal court set aside the arson conviction; it did not merely
prohibit separate punishment. (Neal, supra, 55 Cal.2d at p. 21.) Thus, at that
time, the question whether multiple conviction was permitted was essentially the
same as the question whether section 654 prohibited multiple punishment.
Accordingly, it is somewhat understandable that the Neal footnote relied on cases
involving the question of multiple conviction.
8
may be considered as representing a stage in the same offense, it has in many
cases been ruled they may be coupled in one count. Thus, setting up a gaming
table, it has been said, may be an entire offense; keeping a gaming table and
inducing others to bet upon it, may also constitute a distinct offense; for either,
unconnected with the other, an indictment will lie. Yet when both are perpetrated
by the same person, at the same time, they constitute but one offense, for which
one count is sufficient, and for which but one penalty can be inflicted.‟ (Wharton
on Criminal Law, approved in People v. Shotwell, 27 Cal. 394.) Again, in People
v. Frank, 28 Cal. 507, it was said: [¶] „The indictment is good whether it be
regarded as containing two counts or but one. Where, in defining an offense, a
statute enumerates a series of acts, either of which separately, or all together, may
constitute the offense, all such acts may be charged in a single count, for the
reason that notwithstanding each act may by itself constitute the offense, all of
them together do no more, and likewise constitute but one and the same offense.‟ ”
(Clemett, at pp. 144-145.)
Applying this line of authority, the Clemett court reversed the possession
conviction, reasoning that “the legislature prescribed but one punishment for a
violation of said act . . . .” (Clemett, supra, 208 Cal. at p. 147.) “Clearly the
possession and control period is covered by the period during which the defendant
operated said still. The defendant may have had a still in his possession or under
his control without operating the same, but he could not have operated it without
having it under his control and in his constructive possession.” (Id. at p. 146.)
In Nor Woods, supra, 37 Cal.2d 584, a used car dealer was convicted of
two counts of grand theft for taking both a 1946 Ford and some cash in exchange
for a 1949 Ford, then failing to deliver the newer car or to return the trade-in and
money. This court reversed one of the convictions. “It is unnecessary to
determine under what circumstances the taking of different property from the
9
same person at different times may constitute one or more thefts. [Citation.] In
the present case both the car and the money were taken at the same time as part of
a single transaction whereby defendant defrauded [the victim] of the purchase
price of the 1949 Ford. There was, accordingly, only one theft, and the fact that
the sentences were ordered to run concurrently does not cure the error.
[Citations.]” (Id. at pp. 586-587.)
Roberts, supra, 40 Cal.2d 483, was a prosecution under Health and Safety
Code section 11500, which read: “ „Except as otherwise provided in this division,
no person shall possess, transport, sell, furnish, administer or give away, or offer
to transport, sell, furnish, administer, or give away, or attempt to transport a
narcotic except upon the written prescription of a physician . . . .‟ ” (Roberts, at p.
486.) The defendant and a confederate were convicted of conspiracy to violate the
statute. They were also convicted of violating the statute in three different ways
on the same occasion by illegally transporting, selling, and possessing heroin. The
court reversed the transportation and possession convictions. “The three acts are
charged and adjudged as separate crimes. However, „cooperative acts constituting
but one offense when committed by the same person at the same time, when
combined, charge but one crime and but one punishment can be inflicted.‟
(People v. Clemett (1929), 208 Cal. 142, 144; see, also, People v. Knowles (1950),
35 Cal.2d 175, 187.) The present case [Roberts] resembles the Clemett case in
that the only possession and transportation of heroin shown were those necessarily
incident to its sale. And as in the Clemett case (p. 150 of 208 Cal.) the error can
be corrected by this court.” (Roberts, at p. 491.)
While these cases all tangentially refer to punishment, they do so because
each held that the defendants were wrongfully convicted of multiple offenses
when only a single crime was committed. Naturally, because the convictions
failed, any punishment based on them would also be set aside.
10
The fourth case cited in the Neal footnote is People v. Brown (1958) 49
Cal.2d 577. There the court considered the application of section 654 to one act
that violated two different Penal Code provisions. The defendant killed Lucy
Sanchez in the course of an unlawful abortion and was convicted of both second
degree murder and abortion. Relying on section 654, this court reversed the
abortion conviction. “It is manifest from the evidence that defendant committed
against Lucy only one criminal act, that is, the insertion of a blunt instrument in
combination with the injection of a solution.” (Brown, at p. 590.) People v.
Coltrin (1936) 5 Cal.2d 649, another abortion/murder case, was overruled insofar
as it held, contrary to section 654, that a person could be “twice punished for one
act.” (Brown, at p. 593.) Thus, Brown was a straightforward application of
section 654‟s language and presaged the holding in Neal.
(2)
Both the language and purpose of section 654 counsel against applying it to
bar multiple punishment for violations of the same provision of law. Certainly the
language of section 654 does not support such an application. By its terms section
654 applies only to “[a]n act or omission that is punishable in different ways by
different provisions of law . . . .” (Italics added.)
Nor does the purpose of section 654 support a bar to multiple punishment
for multiple violations of the same provision of law. As we have said frequently,
the purpose of section 654 is to ensure that a defendant‟s punishment will be
commensurate with his culpability. (See, e.g., People v. Oates (2004) 32 Cal.4th
1048, 1063 (Oates); Latimer, supra, 5 Cal.4th at p. 1211; People v. Perez (1979)
23 Cal.3d 545, 550-551 (Perez); Neal, supra, 55 Cal.2d at p. 20.) We have also
observed that “[t]he Neal test does not, however, so ensure. A person who
commits separate, factually distinct, crimes, even with only one ultimate intent and
objective, is more culpable than the person who commits only one crime in pursuit
11
of the same intent and objective.” (Latimer, supra, 5 Cal.4th at p. 1211.) For the
reasons we gave in Latimer, discussed above, we have not repudiated the long-
standing holding of Neal. However, we here limit, rather than expand, its
incongruity by applying section 654 according to its terms, that is, to “[a]n act or
omission that is punishable in different ways by different provisions of law.”
In other contexts, we have declined to extend section 654‟s reach and bar
multiple punishment under the same provision of law. For example, section 654
does not apply to crimes of violence against multiple victims. (E.g., Oates, supra,32 Cal.4th at p. 1063.)10 The reason is that “[a] defendant who commits an act of
violence with intent to harm more than one person or by means likely to cause
harm to several persons is more culpable than a defendant who harms only one
person.” (Oates, at p. 1063.)
Similarly, we have declined to apply section 654 where the defendant has
committed multiple violations of the same provision of law prohibiting sexual
assaults. In Harrison, supra, 48 Cal.3d 321, the defendant broke into the victim‟s
home and committed three separate acts of digital penetration. After each
penetration the victim was able to pull away. Twice the defendant was able to
overpower her and penetrate her again. After the third assault she was able to
retreat to a bathroom and lock the door. The entire episode lasted seven to 10
minutes. (Id. at pp. 325-326.)
First, the Harrison court found that the defendant was properly convicted of
three separate counts of sexual penetration by a foreign object. (Harrison, supra,
48 Cal.3d 321, 327-334.) It then considered the trial court‟s imposition of separate
10 Section 654 is not applicable where “ „one act has two results each of which
is an act of violence against the person of a separate individual.‟ ” (Neal, supra,
55 Cal.2d at pp. 20-21.)
12
consecutive sentences for each sexual offense. It held that section 654 did not bar
separate penalties for each assault, even though they involved violations of the
same code section and occurred during a brief period. It relied on the holding of
Perez, supra, 23 Cal.3d at page 553, that a “ „defendant who attempts to achieve
sexual gratification by committing a number of base criminal acts on his victim is
substantially more culpable than a defendant who commits only one such act.‟ ”
(Harrison, supra, at p. 336.)
The Harrison court rejected the defendant‟s argument that under section
654 he could not receive multiple punishments because his crimes involved
identical offenses. The court explained that to apply section 654 in that way
“would mean that „once a [defendant] has committed one particular sexual crime
against a victim he may thereafter with impunity repeat his offense,‟ so long as he
does not direct attention to another place on the victim's body, or significantly
delay in between each offense. [Citation.] However, it is defendant‟s intent to
commit a number of separate base criminal acts upon his victim, and not the
precise code section under which he is thereafter convicted, which renders section
654 inapplicable.” (Harrison, supra, 48 Cal.3d at pp. 337-338.)
Similarly, a felon who possesses several firearms is more culpable than one
who possesses a single weapon. The purpose of The Dangerous Weapons Control
Law,11 of which former section 12021 was a part, is to protect the public by
denying firearms to felons, who are considered more likely to commit crimes with
them. (People v. Bell (1989) 49 Cal.3d 502, 544 (Bell).) The Legislature has
made it clear that the magnitude of a felon‟s culpability depends on the number of
11 Former section 12000 et seq. (Enacted by Stats. 1953, ch. 36, § 1, p. 653;
repealed by Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012.)
13
weapons possessed. As noted, former section 12001, subdivision (k) specified that
the possession of “each firearm . . . shall constitute a distinct and separate offense”
under, among other provisions, former section 12021.12 An analogy to our
observation in Harrison is apt. To apply the section 654 bar to punishment for
multiple violations of the weapons possession statute here would mean that once a
felon had acquired one firearm “ „he may thereafter with impunity‟ ”13 acquire as
many guns as he wishes, at least as long as he keeps his arsenal in one place and is
arrested while possessing all of its contents. As we explain below, such a result
clearly contravenes express legislative intent.
(3)
Reconsidering the Neal footnote is a departure. Some Court of Appeal
decisions have expressly relied on it in applying section 654 to multiple
punishment for violations of the same provision of law. (See People v. Davey
(2005) 133 Cal.App.4th 384 (Davey); People v. Hall (2000) 83 Cal.App.4th 1084(Hall).)
In Davey, supra, 133 Cal.App.4th 384, the Court of Appeal held that under
section 654, “a single act of indecent exposure constitutes only one crime for the
purpose of sentencing, regardless of the number of people who witness it.”
(Davey, at p. 387.) The court further held that “indecent exposure is not a violent
12 Former section 12001, subdivision (k), provided: “For purposes of
Sections 12021 [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.”
New section 23510 provides “notwithstanding the fact that the term „any
firearm‟ may be used in [the specified] sections, each firearm . . . constitutes a
distinct and separate offense under those sections.”
13 Harrison, supra, 48 Cal.3d at page 337.
14
crime for the purpose of the multiple-victim exception under section 654.” (Id. at
p. 392.) Citing the Neal footnote, the court said, “Although section 654 by its
terms bars only multiple punishment for a single act violating more than one
statute, it has long been interpreted also to preclude multiple punishment for more
than one violation of a single Penal Code section, if the violations all arise out of a
single criminal act.” (Davey, at p. 389.)
In Hall, supra, 83 Cal.App.4th 1084, the issue was “whether a single act of
exhibiting a firearm in a threatening manner in the immediate presence of several
peace officers in violation of section 417, subdivision (c), is punishable for as
many times as there are peace officers present pursuant to the multiple-victim
exception to section 654. We conclude that the plain language of section 654, its
purpose, and the case law construing it compel a single punishment for a single act
of exhibiting a firearm in violation of section 417, subdivision (c), regardless of
the number of peace officers present. The crime of exhibiting a firearm „in the
immediate presence of a peace officer‟ in violation of section 417, subdivision (c),
is, by its very definition, not committed upon a peace officer, but only in the
presence of a peace officer. The multiple-victim exception to section 654 requires
multiple victims, not multiple observers. Only once the exhibition of the firearm
becomes an assault may the observers become victims, and may a single act
warrant multiple punishment.” (Id. at pp. 1086-1087.) Relying on the Neal
footnote, the Court of Appeal stayed sentences on two of the three brandishing
convictions. (Id. at pp. 1088, 1096-1097.)14
14 In Britt, supra, 32 Cal.4th 944, this court did not rely upon or cite the Neal
footnote. However, the court did hold that section 654 barred punishing the
defendant for both of his violations of the same statute. The defendant, a
registered sex offender, was convicted in Sacramento County for failing to notify
authorities there that he had moved to El Dorado County. (§ 290, subd.(f)(1).)
(footnote continued on next page)
15
However, having reconsidered the Neal footnote, we conclude that section
654 does not bar multiple punishment for violations of the same provision of law.
In doing so we reject dictum, correct a legally unsupported principle, are more
consistent with our later jurisprudence, and conform to the plain language of the
statute. The stare decisis considerations that led to our policy decision in Latimer,
not to repudiate the Neal holding, do not weigh as heavily with regard to the Neal
footnote, particularly in light of its inconsistency with the text of the statute. The
Neal footnote has caused great confusion since its penning and is plainly obiter
dictum. In these circumstances, it is for this court, not the Legislature, to clarify
our own jurisprudence.
(4)
Defendant contends that if we hold section 654 does not govern multiple
punishment for violations of the same provision of law, we may apply the new
rule prospectively only. We agree.
(footnote continued from previous page)
Later, he was also convicted in El Dorado County for failing to notify authorities
in that county of the move. We held that prosecuting the El Dorado County action
after the defendant had been convicted in Sacramento County violated section
654‟s bar on multiple prosecutions. We also held that section 654‟s ban on
multiple punishment was violated because the defendant had a single objective:
avoiding police surveillance. “Accordingly, we conclude that a person subject to
section 290‟s reporting requirements who changes residence a single time within
California without reporting to any law enforcement agency, and who thus violates
both subdivisions (a) and (f) of section 290, may be punished for one of those
crimes, but not both.” (Britt, at pp. 953-954.) The court noted that “[t]his case
involves a single move directly from one jurisdiction to another. We express no
opinion on how section 654 would apply to other facts, such as multiple moves or
the maintenance of multiple residences.” (Id. at p. 951, fn. 4.)
16
The due process clause is a limitation on the powers of the legislature and
does not of its own force apply to the judicial branch of government. However,
the principle on which the clause is based, that a person has a right to fair warning
of the conduct which will give rise to criminal penalties, is fundamental to our
concept of constitutional liberty. As such, that right is protected against judicial
action by the due process clause of the Fourteenth Amendment to the United
States Constitution. (Marks v. United States (1977) 430 U.S. 188, 191-192;
People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 21; People v. Morante
(1999) 20 Cal.4th 403, 431.)
Our case most nearly on point is People v. King (1993) 5 Cal.4th 59, where
the court overruled In re Culbreth (1976) 17 Cal.3d 330. The Culbreth court had
held that even if there were multiple counts involving multiple victims of violent
crime, a firearm use enhancement under section 12022.5 could be imposed only
once if all the charged offenses were incident to one objective and effectively
comprised an indivisible transaction. (Culbreth, at p. 333.) The King court
concluded that its holding overruling Culbreth could not be applied retroactively.
(King, at p. 80.) “The Culbreth rule has been the law of this state since 1976. It
was the law when defendant committed his crimes. Refusing to apply it here
would make the punishment for his crimes more burdensome after he committed
them. Defendant is therefore constitutionally entitled to its benefit.” (Ibid.)
While the ex post facto clause bars applying this new rule to defendant, the
enactment history of former section 12021, subdivision (a) makes it clear that the
Legislature intended that a felon found in possession of several firearms be liable
to conviction of and punishment for each of the firearms.
B. Legislative History
Former section 12021, subdivision (a)(1), made it a felony for a convicted
felon to possess “any firearm.” As we have explained, the purpose of The
17
Dangerous Weapons Control Law, of which section former 12021, subdivision (a)
was a part, is to protect the public by denying firearms to felons, who are
considered more likely to commit crimes with them. (Bell, supra, 49 Cal.3d at
p. 544.)
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.
Section 12001, subdivision (k), was enacted in response to People v. Kirk
(1989) 211 Cal.App.3d 58. Kirk construed former section 12020, subdivision (a),
which made it a felony to possess “any instrument or weapon of the kind
commonly known as a . . . sawed-off shotgun.” (Stats 1984, ch. 1562, § 1.1,
p. 5499, italics added.) The question was whether Kirk could be convicted of two
violations of former section 12020, subdivision (a) “where he possessed two
sawed-off shotguns at the same time and place.” (Kirk, at p. 61.) Finding federal
authority persuasive on the question whether the term “any” was ambiguous, the
Court of Appeal concluded that: (1) the term “any” in former section 12020,
subdivision (a), ambiguously indicated the singular or the plural; and (2) the
ambiguity should be construed in favor of a defendant. (Id. at pp. 62-66.) The
statute, the court held, “fail[ed] to provide any warning that separate convictions
will result for each weapon simultaneously possessed.” (Id. at p. 65.) The court
acknowledged, however, that the Legislature could amend the statute to permit
multiple conviction and punishment, if it wished: “We have no doubt the
Legislature could, it if wanted to, make criminal and subject to separate
punishment the possession of each and every sawed-off shotgun found at the same
time and place. [Citation.]” (Id. at p. 62, italics added.) In response, the
18
Legislature amended the statute to do just that. The legislative history of section
12001, subdivision (k), is replete with statements that it was intended to overrule
Kirk and to make it clear that possession of each weapon constitutes a separate
offense under the enumerated statutes. (See, e.g., Legis. Counsel‟s Dig., Sen. Bill
No. 37, 5 Stats. 1994 (1993-1994 1st Ex. Sess.) Summary Dig., pp. 583-584.)
The Legislature, in repudiating Kirk and specifically providing that
possession of each firearm is a separate offense, effectively adopted the rule we
announce today. It expressed its clear intention that a felon may be punished
separately for each firearm possession count of which he is convicted.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
KENNARD, ACTING C. J.
BAXTER, J.
CHIN, J.
LIU, J.
SEPULVEDA, J. *
_______________________________
* Associate Justice, Court of Appeal, First Appellate District, Division Four,
assigned by the Acting Chief Justice pursuant to article VI, section 6 of the
California Constitution.
19
CONCURRING OPINION BY WERDEGAR, J.
In February 2006, police found defendant, a felon, in simultaneous
possession of seven firearms. At that time, as now, it was illegal for a felon to
possess a firearm. (Pen. Code,1 former § 12021, subd. (a)(1); now see § 29800,
subd. (a)(1), added by Stats. 2010, ch. 711, § 6.) Defendant was convicted of
seven separate counts of violating former section 12021, one conviction for each
prohibited weapon. That he could be convicted of seven separate crimes on these
facts is clear from the statutory scheme. (Former § 12001, subd. (k); now see
§ 23510.) Whether he could be separately punished for each conviction is the
question before us.
As I explain, I agree with the majority that defendant may be separately
punished for seven separate crimes. Like the majority, I reach that conclusion
because the Legislature specifically amended the Penal Code to provide that each
weapon could be the basis of a separate conviction, and it could have had no
reason or purpose to make that change had it not intended that defendant could
also be punished for each of those separate convictions. (Maj. opn., ante, at
pp. 18-19.) Because there is no need to proceed further and disapprove dictum in
Neal v. State of California (1960) 55 Cal.2d 11, which found section 654
1 All further statutory references are to the Penal Code unless otherwise
stated.
1
applicable to preclude multiple punishment for multiple violations of the same
statute, I do not join that part of the majority opinion.
Former section 12021 includes no express language referencing section
654, nor does it provide that it applies “notwithstanding any other provision of
law” or contain some equivalent language to suggest an exception to section 654‟s
prohibition on multiple punishment. But a legislative reaction to an appellate
decision involving a different but related weapons law suggests the Legislature
intended that felons be separately punished for each weapon they illicitly possess.
In People v. Kirk (1989) 211 Cal.App.3d 58, the defendant was convicted
of possessing a sawed-off shotgun and a sawed-off rifle in violation of former
section 12020, subdivision (a).2 The facts indicated his possession of the two
weapons was simultaneous: police entered the defendant‟s home in response to a
report of a fight involving gunshots “and found a sawed-off shotgun on the living
room couch and a sawed-off rifle in a closet in the bedroom.” (Kirk, at p. 60.)
The Kirk court explained that “[t]he principal question is whether defendant can be
convicted of two violations of former section 12020 where he possessed two
sawed-off shotguns at the same time and place.” (Id. at p. 61.) Finding it
irrelevant that the weapons were of different types and observing that no evidence
showed they were possessed at different places or different times (ibid.), the Kirk
court focused on the word “any” in the statute to conclude the defendant was
2 At the time the defendant in Kirk committed his crime, former section
12020, subdivision (a) made it a felony for “[a]ny person in this state” to possess
“any short-barreled shotgun” or “any short-barreled rifle.” (Stats. 1984, ch. 1562,
§ 1.1, p. 5499.) A substantially identical law now appears as section 33215.
(Stats. 2010, ch. 711, § 6.)
2
“entitled to the benefit of the statutory ambiguity”3 (Kirk, at p. 65), that the
possession of two illegal firearms constituted but one punishable act, and that
section 654 barred punishing the defendant more than once for the simultaneous
possession of two firearms (Kirk, at p. 65).
In response to People v. Kirk, supra, 211 Cal.App.3d 58, the Legislature
amended former section 12001 to clarify that each illegal firearm was the basis of
a separate crime. “In 1994, specifically in response to Kirk, the Legislature
amended section 12001 by adding new subdivision[] (k) . . . . (Stats. 1994, First
Ex. Sess. 1993–1994, ch. 32, § 1.) The new section[] provided as follows:
[¶] „(k) For purposes of Section[] 12021 . . . , of this code, . . . notwithstanding the
fact that the term “any firearm” may be used in [that] section[], each firearm . . .
shall constitute a distinct and separate offense under [that] section[]. . . .‟
[¶] [This new subdivision was] added with the express intent of overruling the
holding in People v. Kirk „insofar as that decision held that the use of the term
“any” in a weapons statute means that multiple weapons possessed at the same
time constitutes the same violation.‟ (Stats. 1994, First Ex. Sess. 1993–1994, ch.
3 “We have no doubt the Legislature could, if it wanted to, make criminal
and subject to separate punishment the possession of each and every sawed-off
shotgun found at the same time and place. [Citation.] The question is whether it
did so by outlawing the possession of „any instrument or weapon of the kind
commonly known as a . . . sawed-off shotgun, . . .‟ (Former § 12020, subd. (a),
[second] italics added.)” (People v. Kirk, supra, 211 Cal.App.3d at p. 62, first
italics added.) After reviewing analogous federal law, the Kirk court concluded
that “former section 12020, subdivision (a) is facially ambiguous. As noted, the
statute is directed at „Any person . . . who . . . possesses . . . any instrument or
weapon . . . .‟ (Italics added.) By its use of the term „any‟ rather than „a,‟ the
statute does not necessarily define the unit of possession in singular terms” (Kirk,
at p. 65), and that “[i]n the circumstances, defendant is entitled to the benefit of the
statutory ambiguity” (ibid.).
3
32, § 5.)” (People v. Rowland (1999) 75 Cal.App.4th 61, 65; People v. DeGuzman
(2003) 113 Cal.App.4th 538, 544 [quoting Rowland].)
At the time defendant was arrested in 2006, former section 12021,
subdivision (a)(1) provided: “Any person who has been convicted of a felony . . .
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.” (Stats. 2004, ch. 593, § 6,
p. 4665; § 29800, subd. (a)(1) now provides the same thing.) Also at that time,
former section 12001, subdivision (k), as amended in response to People v. Kirk,
supra, 211 Cal.App.3d 58, provided that “For purposes of Section[] 12021 . . .
each firearm . . . shall constitute a distinct and separate offense . . . .” (Stats. 2005,
ch. 715, § 4, p. 5733.) Clearly the statutory scheme authorized the jury to convict
defendant of seven separate counts of weapon possession, one for each firearm.
But does it also compel an inference that the Legislature intended an implied
exception to section 654 to permit multiple punishment as well?
I agree with the majority that it does. By adding subdivision (k) to former
section 12001 specifically to overrule People v. Kirk, supra, 211 Cal.App.3d 58,
the Legislature not only made clear that multiple convictions were permissible, it
also necessarily implied that multiple sentences were also authorized. This is so
because no plausible reason exists to allow for multiple convictions if the
offender‟s aggregate sentence were to remain the same. “[W]e cannot assume our
Legislature engaged in an idle act or enacted a superfluous statutory provision.”
(California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
14 Cal.4th 627, 635.)
4
Inferring an exception to section 654 from the addition of subdivision (k) to
former section 12001 suffices to resolve the case before us. It is thus unnecessary
to address the continued vitality of the Neal dictum, which found section 654
applicable to violations of the same statute. (Neal v. State of California, supra, 55
Cal.2d at p. 18, fn. 1.) Although I do not join the majority‟s discussion concerning
Neal, I concur in the balance of the majority opinion finding section 654
inapplicable here.
WERDEGAR, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Correa
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 161 Cal.App.4th 980Rehearing Granted
__________________________________________________________________________________
Opinion No. S163273
Date Filed: June 21, 2012
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Patricia C. Esgro
__________________________________________________________________________________
Attorneys for Appellant:
Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Robert C. Nash and
Jennevee H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Conrad Petermann
Law Office of Conrad Petermann
323 East Matilijia Street, Suite 110
Ojai, CA 93023
(805) 646-9022
Jennevee H. De Guzman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-255
(916) 323-5809