People v. Baird

• Decision Date: 21 December 1995
• Docket Number: No. S043270,S043270
• Citation: 12 Cal.4th 126,48 Cal.Rptr.2d 65,906 P.2d 1220
• Court: California Supreme Court
• Parties: , 906 P.2d 1220, 95 Cal. Daily Op. Serv. 9783, 95 Daily Journal D.A.R. 16,945 The PEOPLE, Plaintiff and Respondent, v. Robert Christopher BAIRD, Defendant and Appellant.

Page 65

48 Cal.Rptr.2d 65

12 Cal.4th 126, 906 P.2d 1220, 95 Cal. Daily Op. Serv. 9783,

95 Daily Journal D.A.R. 16,945

The PEOPLE, Plaintiff and Respondent, v. Robert Christopher BAIRD, Defendant and Appellant.

No. S043270.

Supreme Court of California.

Dec. 21, 1995.

Jonathan D. Soglin, under appointment by the Supreme Court, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and David D. Salmon, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

When a prior felony conviction is used against a defendant to establish the ex-felon element of a charge under section 12021 of the Penal Code ¹ (possession of a firearm by an ex-felon), may the prison term resulting from that prior conviction be used to enhance the defendant's sentence under section 667.5, subdivision (b) (section 667.5(b))?

The Court of Appeal below concluded that People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 and People v. Wilks (1978) 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369 were controlling on this issue. Those cases, which were decided under the former indeterminate sentencing law, held that when a prior conviction is used as an element of a crime, the same conviction cannot also be used to increase the minimum sentence for the crime. In addition to finding the rule of those decisions (the Edwards rule) applicable, the Court of Appeal also interpreted People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 (Jones )--which concluded as a matter of statutory interpretation that section 667 barred the imposition of cumulative sentence enhancements for a prior conviction under section 667 and a prior prison term under section 667.5(b) based on a single prior felony offense--to preclude the use of a prior prison term to increase the sentence for a current substantive offense whenever the underlying conviction is used to establish an element of that offense.

We conclude the Court of Appeal erred. In our view, the Edwards rule has no application here because section 667.5(b) does not permit the mere fact of a prior conviction to increase the sentence for a section 12021 offense. Moreover, Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, did not hold or otherwise suggest that a prior prison term may not enhance the sentence for a current offense where the felony conviction that resulted in the prison term is used to establish an essential element of the offense. We therefore reverse the judgment of the Court of Appeal and remand the matter to that court with directions to resolve a remaining issue consistent with our analysis in People v. Coronado (1995) 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 906 P.2d 1232.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 19, 1992, defendant Robert Christopher Baird pleaded guilty to charges of possession of a firearm by an ex-felon (§ 12021, subd. (a)) and spousal battery (§ 273.5, subd. (a)). He also admitted he had served a prior prison term for a felony, burglary, within the meaning of section 667.5(b). The court suspended imposition of the sentence and placed defendant on probation. After defendant violated conditions of his probation, the superior court revoked the probation grant and sentenced defendant to state prison for a total of three years, consisting of the midterm of two years for the firearm possession plus an enhancement of one year under section 667.5(b).

On appeal, defendant contended that the use of the same prior conviction to establish the ex-felon element of the charge under section 12021 and to enhance the sentence therefor violates section 654, which bars multiple punishment of an "act or omission." He also contended that such a use is prohibited under People v. Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, People v. Wilks, supra, 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, and Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163.

Without reaching the section 654 issue, the Court of Appeal agreed with defendant that case law barred imposition of the one-year enhancement. The court concluded that the enhancement must be stricken, but otherwise affirmed the judgment. We granted the People's petition for review.

II. DISCUSSION

The issue before us is whether People v. Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, People v. Wilks, supra, 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, or Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, prohibits the use of a prior prison term to enhance a sentence under section 667.5(b) where the prior conviction that resulted in the prison term is used to establish the ex-felon element of a charge under section 12021.

As pertinent here, section 12021 makes it a felony for any person who has been convicted of a felony under state or federal law to own or to be in possession, custody, or control of a firearm. (§ 12021, subd. (a).) The ex-felon status of a person charged under section 12021 is an element of the offense which must be proved to the trier of fact. (See People v. Bouzas (1991) 53 Cal.3d 467, 479, 279 Cal.Rptr. 847, 807 P.2d 1076 [contrasting prosecutions under § 12021 and those under § 666 for petit theft with prior theft-related conviction].)

Section 667.5 provides in pertinent part: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [p] ... [p] (b) ... where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Italics added.)

Initially we note defendant does not argue that either section 12021 or section 667.5(b) expressly precludes the use of a prior felony conviction to establish the ex-felon element of the substantive offense (§ 12021), and the simultaneous use of the prior prison term served for that same prior conviction to enhance the sentence therefor under section 667.5(b). Rather, defendant relies upon decisional law and the principle that legislative enactments should not be construed to overthrow long-established principles of law unless such an intention is clearly shown. (See People v. Pitts (1990) 223 Cal.App.3d 606, 870, 273 Cal.Rptr. 757.)

Prior to the effective date of the determinate sentencing law (July 1, 1977), it was clear that a trial court could not rely upon a defendant's prior felony conviction to augment a sentence under former section 3024, subdivision (c) ² where the same conviction had been used to establish the ex-felon element of an offense under section 12021. This was the rule expressed in People v. Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 and in People v. Wilks, supra, 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369. In People v. Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, a defendant was convicted of possession of a firearm by a felon under section 12021. A prior conviction for selling marijuana served as the basis for the ex-felon element of the possession charge. (18 Cal.3d at pp. 799-800, 135 Cal.Rptr. 411, 557 P.2d 995.) The trial court purported to augment the defendant's sentence pursuant to former section 3024, which at the time provided for increased minimum terms for persons previously convicted of a felony. In concluding the additional punishment must be stricken, People v. Edwards, supra, explained: "The court's reliance on defendant's prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense ... runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction." (18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995, italics added.) Similarly, People v. Wilks, supra, found the trial court erred in allowing the same prior conviction to be used both as an element of an substantive offense under section 12021 and to enhance punishment for that same offense. (21 Cal.3d at p. 470, 146 Cal.Rptr. 364, 578 P.2d 1369.)

Effective July 1, 1977, the Uniform Determinate Sentencing Act of 1976 became law (Stats.1976, ch. 1139), and former section 3024 was repealed (Stats.1976, ch. 1139, § 279, p. 5151). Section 667.5(b) was enacted as part of the new law. (Stats.1976, ch. 1139, § 268, pp. 5137-5139.)

After former section 3024's repeal and prior to our decision in Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, a number of appellate courts concluded that the enactment of the determinate sentencing law abrogated the Edwards rule. (E.g., People v. Price (1992) 4 Cal.App.4th 1272, 1278, 6 Cal.Rptr.2d 263; People v. Rodriguez (1988) 206 Cal.App.3d 517, 519-520, 253 Cal.Rptr. 633; People v. Levell (1988) 201 Cal.App.3d 749, 752, 247 Cal.Rptr. 489; People v. Bruno (1987) 191 Cal.App.3d 1102, 1106-1107, 237 Cal.Rptr. 31.) ³ For the most part, those courts found it significant that the Legislature deleted the following sentence from the final version of section 1170, subdivision (b), prior to its operative date: "In no event shall any fact be used twice to determine, aggravate, or enhance a sentence." (Stats.1977, ch. 165, § 15, p. 647.) In their view, this sentence was to have codified the Edwards rule; thus its deletion reflected legislative intent to eliminate the rule. (People v. Price, supra, 4 Cal.App.4th at p. 1278, 6 Cal.Rptr.2d 263; ...