People v. Equarte

• Decision Date: 21 August 1986
• Citation: 229 Cal.Rptr. 116,722 P.2d 890,42 Cal.3d 456
• Parties: , 722 P.2d 890 The PEOPLE, Plaintiff and Respondent, v. Ronald EQUARTE, Defendant and Appellant. Crim. 24651.
• Court: California Supreme Court

Page 116

229 Cal.Rptr. 116

42 Cal.3d 456, 722 P.2d 890

The PEOPLE, Plaintiff and Respondent, v. Ronald EQUARTE, Defendant and Appellant.

Crim. 24651.

Supreme Court of California.

Aug. 21, 1986.

As Modified Aug. 28, 1986.

Rehearing Denied Oct. 2, 1986.

Kent A. Barkhurst, under appointment by the Supreme Court, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., James T. McNally and James Ching, Deputy Attys. Gen., for plaintiff and respondent.

GRODIN, Justice.

We granted review in this case and in People v. Piper, 42 Cal.3d 471, 229 Cal.Rptr. 125, 722 P.2d 899 (1986) to resolve a conflict in Court ofAppeal opinions concerning the proper interpretation of several recidivist sentencing provisions--adopted in 1982 as part of Proposition 8--which authorize an additional five-year sentence for defendants convicted of statutorily designated "serious felonies." (Pen.Code, §§ 667, 1192.7, subd. (c).) ¹ Here, defendant, convicted of assault with a deadly weapon ( § 245, subd. (a)(1)), contends that the trial court erred in concluding that the prerequisites for a five-year enhancement were properly met. We hold, contrary to defendant's contention, that an assault-with-a-deadly-weapon conviction may constitute a "serious felony" within the relevant statutes if the prosecution properly established that the defendant "personally used a dangerous or deadly weapon" in the commission of the offense ( § 1192.7, subd. (c)(23)). Further, although defendant contends that the enhancement was improperly imposed in this case because the complaint failed to allege the section 667 enhancement with sufficient particularity, we conclude--on the basis of our decision in People v. Thomas (1986) 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94--that while the complaint may have been subject to a special demurrer for uncertainty, defendant--having failed to demur--may not challenge the enhancement on this ground on appeal. Accordingly, we affirm the judgment.

I

In April 1983, defendant was charged with two counts of assault with a deadly weapon arising cut of an incident in his apartment building in March 1983. In connection with each of the assault counts, the complaint alleged that defendant had inflicted great bodily injury within the meaning of section 12022.7. ²

In a separate paragraph, entitled "prior conviction," the complaint additionally alleged that defendant had previously been convicted of a "serious felony" within the meaning of sections 667 and 1192.7, subdivision (c)(25)--a 1981 attempted robbery conviction. The complaint did not explicitly allege either generally or by reference to any specific provision of section 1192.7, subdivision (c), that defendant's current offenses were "serious felonies" within the meaning of sections 667 and 1192.7, subdivision (c), and it contained no allegation that defendant had "personally used a dangerous or deadly weapon" in the current offenses.

At trial, the "prior conviction" issue was bifurcated from the remainder of the charges, to be determined by the court after the jury's consideration of the substantive offenses. At the conclusion of the trial on the principal charges, the jury found defendant guilty of one count of assault with a deadly weapon but acquitted him on the other count. With respect to the count on which he was convicted, the jury found that the great bodily injury allegation had not been established.

Thereafter, at the sentencing hearing, the court considered whether, in addition to the sentence for the assault-with-a-deadly-weapon conviction, a five-year enhancement should be imposed under section 667. Defendant conceded that his 1981 attempted robbery conviction constituted a "serious felony" for purposes of section 667. Section 667, however, authorizes a five-year enhancement only when both the defendant's prior crime and his current offense constitute "serious felonies," and defendant argued that the prosecution had neither pleaded nor proved that his current offense was such a "serious felony." Defendant's argument was based, in part, on a claim that, under the statutory provisions, assault with a deadly weapon could never provide the basis for a "serious felony" under section 667. The trial court rejected the claim, and concluded that defendant's current offense qualified as a serious felony under section 1192.7, subdivision (c)(23), which defines "serious felony" to include "any felony in which the defendant personally used a dangerous or deadly weapon." Although defendant noted that the prosecution had not specifically pleaded, nor had the jury specifically found, that defendant personally used a dangerous or deadly weapon, the court apparently concluded that no such pleading was required and that defendant's "personal use" for purposes of section 667 was adequately established since the evidence at trial clearly demonstrated that there had been no accomplice in this case. Accordingly, the court included an additional five-year enhancement under section 667 in imposing sentence.

On appeal, the Court of Appeal affirmed defendant's conviction for assault with a deadly weapon but reversed the section 667 enhancement. In reaching the latter conclusion, the Court of Appeal relied in part on People v. Bradford (1984) 160 Cal.App.3d 532, 206 Cal.Rptr. 899, which had earlier concluded that a prior assault-with-a-deadly-weapon conviction did not constitute a "serious felony" under section 1192.7, subdivision (c)(23).

The People then sought review, contending that Bradford 's interpretation of the serious felony categories of section 1192.7, subdivision (c) is inconsistent with this court's reading of the statute in our recent decision in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736. Because the Courts of Appeal have reached differing conclusions on the issue (compare People v. Arwood (1985) 165 Cal.App.3d 167, 211 Cal.Rptr. 307 with People v. Sutton (1985) 163 Cal.App.3d 438, 209 Cal.Rptr. 536), we granted review to resolve the question. ³

II

Section 667, subdivision (a) provides an additional five-year prison term for repeat offenders convicted of a "serious felony" who previously have been convicted of another "serious felony." ⁴ Section 667, sub division (d) defines "serious felony," as used in section 667, by reference to section 1192.7, subdivision (c), which lists 25 categories which qualify as "serious felonies." ⁵

As noted, defendant concedes that his prior conviction for attempted robbery constitutes a serious felony for purposes of section 667. ( § 1192.7, subds. (c)(25), (c)(19).) He claims, however, that the trial court erred in finding that the People had properly pleaded and proved that his current offense constitutes a serious felony.

As defendant points out, section 1192.7, subdivision (c) does not include "simple" assault with a deadly weapon ( § 245, subd. (a)(1))--the offense of which he was convicted in this case--among the specifically named offenses included in its numerous categories. Although two "aggravated" assault-with-a-deadly-weapon offenses--(1) "assault with a deadly weapon or instrument on a peace officer" and (2) "assault with a deadly weapon by an inmate" ( § 1192.7, subds. (c)(11), (c)(13))--are expressly named, simple assault with a deadly weapon is not. ⁶

The trial court ruled, however, that defendant's present offense constituted a "serious felony" under section 1192.7, subdivision (c)(23): "any felony in which the defendant personally used a dangerous or deadly weapon." ⁷ Defendant raises a number of objections to the trial court's ruling. As we explain, we conclude that defendant's objections are unfounded.

Defendant initially contends that subdivision (c)(23) should not be interpreted to apply to any felony in which use of a deadly weapon is itself an element of the crime. He maintains that this subdivision was intended to apply only to those cases in which the prosecution has pleaded and proved personal use of a deadly weapon under section 12022, subdivision (b), a separate sentencing provision which provides a one-year enhancement when a defendant personally uses a dangerous or deadly weapon in the commission of a felony. ⁸ Because section 12022, subdivision (b) contains an explicit proviso making its provisions inapplicable when use of a deadly or dangerous weapon is an element of the underlying offense, defendant argues that subdivision (c)(23) is similarly limited.

In support of his position, defendant relies on People v. Bradford, supra, 160 Cal.App.3d 532, 206 Cal.Rptr. 899. In Bradford, the Court of Appeal noted that the list of serious felonies set forth in section 1192.7, subdivision (c) was taken in large part directly from the list of "violent offenses" embodied in a separate sentencing provision--section 12021.1, subdivision (b) ⁹--and concluded that, like section 12021.1, subdivision (b), the categories of section 1192.7, subdivision (c) should be interpreted to refer to already existing "discrete crimes (or former crimes) and enhancements." (Italics added.) (160 Cal.App.3d at p. 541, 206 Cal.Rptr. 899.) Bradford further ruled that in light of the similarity in language between subdivision (c)(23) and section 12022, subdivision (b), "a serious felony conviction described by [subdivision (c)(23) ], and arising out of a crime committed before Proposition 8, is one where an enhancement under section 12022, subdivision (b) was pleaded and proved or admitted." (Fn. omitted.) (160 Cal.App.3d at p. 542, 206 Cal.Rptr. 899.) ¹⁰ Because in Bradford the defendant's prior assault-with-a-deadly-weapon conviction had not been accompanied by a section 12022, subdivision (b) enhancement, the court held that the five-year enhancement of section 667 had been improperly imposed.

Bradford, however, preceded this court's recent decision in People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, and, as Justice Panelli accurately observed...