People v. Pheaster

• Decision Date: 06 May 1963
• Docket Number: Cr. 8424
• Citation: 215 Cal.App.2d 754,30 Cal.Rptr. 363
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Hugh MacLeod PHEASTER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 363

30 Cal.Rptr. 363

215 Cal.App.2d 754

The PEOPLE of the State of California, Plaintiff and Respondent, v. Hugh MacLeod PHEASTER, Defendant and Appellant.

Cr. 8424.

District Court of Appeal, Second District, Division 2, California.

May 6, 1963.

Ray L. Smith, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gordon Ringer, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

Defendant appeals from the judgment of conviction wherein he was found guilty of the crime of abortion in violation of section 274, Penal Code, and also of the crime of attempted abortion. In addition, he was found to have come within the terms of section 12022 of the Penal Code in that he was armed with a .38 caliber revolver at the time of the commission of the attempted abortion. ¹

Appellant's sole contention on this appeal relates to the propriety of applying section 12022 Penal Code in this instance. He does not question the sufficiency of the evidence to prove the abortion or the attempted abortion; nor does he deny that he was in possession of the weapon at the time of the attempted abortion. His sole contention herein is that section 12022 must be considered together with section 12023 ² and that, when so considered, it will appear that the Legislature, in using the words 'any felony' in section 12022, actually meant only those felonies committed 'against the person of another' referred to in section 12023.

Appellant argues that an abortion is not a crime 'against the person of another' as that expression is used in section 12023, since, in most instances, the woman involved is a willing participant and therefore a weapon is not needed in order to overcome resistance. Whatever may be the theoretical validity of this element of appellant's argument, it is apparent that his basic contention is wholly without merit.

Although both sections relate to the general subject of serious crimes committed while carrying dangerous weapons, their provisions are markedly different, and this is so for the quite obvious reason that their functions and purposes are entirely different. Section 12023 does not purport to govern the matter of the sentence; it merely sets forth a rule of evidence. Before the possession of a weapon should be accorded any substantial effect as evidence tending to prove the commission of a separate offense, there should be some proof that such weapon was used in the commission of the primary offense. (See People v. Murguia, 6 Cal.2d 190, 193-194, 57 P.2d 115, where this proposition was applied in connection with section 12023, which was then a part of section 3 of the Deadly Weapons Act.) The failure of the Legislature to amend section 12022 in 1961 when section 12023 was amended to bring it into conformity with the rule expressed in the Murguia case, supra, supplies additional proof that the Legislature recognized the inherent differences in the two sections and did not intend the requirements of the latter to be included in the former.

Section 12022, on the other hand, is no more than a logical extension of the basic and historic legal concept that the punishment of malefactors should be correlated with the danger to the public deemed to be inherent in their various wrongful acts. Thus, section 12025 of the Penal Code provides that any person who carries a concealed firearm without a license so to do 'is guilty of a misdemeanor, and if he has been convicted previously of any felony or of any crime made punishable by this chapter, is guilty of a felony.'

Section 12021 makes it a crime even to own or possess a firearm capable of being concealed by aliens, felons or drug addicts. Section 12022, presently being considered, does no more than provide a further and additional penalty where a person is armed with the illegal firearm during the commission of any felony.

To argue that when the Legislature used the clear and concise expression 'any felony' in section 12022, they actually meant only felonies in which a weapon was reasonably necessary to its commission is to ignore the universally known fact that felonies of this latter variety generally are punished more severely in any event by reason of their great intrinsic danger to society.

In re Shull, 23 Cal.2d 745, 146 P.2d 417, held that the punishment prescribed for the crime of assault with a deadly weapon could not properly be increased under the terms of section 12022, then a part of section 3 of the Deadly Weapons Act, where the weapon involved was the one used in, and required as one of the elements of, the felony to which it relates. ³

Therefore, as pointed out in the Shull case, supra, the intent of the Legislature in enacting section 12022 appears to be the exact converse of that urged by appellants in that it probably had in mind only those felonies in which possession of a deadly weapon would not be a necessary element. Thus it is stated at page 750 of 23 Cal.2d 146 P.2d at page 419: 'It is apparent that section 245 of the Penal Code is a specific provision. It defines and determines the punishment for a specific kind of a crime, assault with a deadly weapon, in the instant case, a pistol. On the other hand, section 3 of the Deadly Weapons Act [now section 12022] which imposes the additional penalty refers to no particular crime, but purports to require an added punishment for felonies generally where the one committing the same is armed with a pistol or the other weapons designated therein and in section 1. * * * It is not unreasonable to suppose that the Legislature believed that for felonies in which the use of a gun was not one of the essential factors, such as rape, larceny, and the like, an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon. Hence, such a condition would be reasonable grounds for increasing the penalty where felonies are involved which do not include as a necessary element being armed with a pistol. * * * In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed by section 3 of the Deadly Weapons Act, because of the additional factor of a deadly weapon being involved.' (Emphasis added.)

Also bearing on this point is the following language from In re O'Donnell (Rodgers), supra, 121 Cal.App. 370, 371-372, 9 P.2d 223, 224: 'After providing that certain classes of persons should refrain from the carrying of concealed weapons, the Legislature having in mind that any one committing a felony, such, for instance, as burglary or robbery going armed, would do so with the intent of killing ane one who should interrupt or attempt to interrupt the commission of such offense, or who, after committing a felony, to which a severe penalty is attached, would, if armed, resist arrest even to the extent of taking life, provided additional penalties which should be added to the penalties otherwise specified in the codes as penalties for the offenses for which such person is arrested, prosecuted, and convicted. Thus, if a person armed with a deadly weapon should commit a burglary under such circumstances, in addition to the penalty provided for the offense of burglary, there should be added an additional term of imprisonment graduated according to the previous offenses, if any, of which the person prosecuted for burglary, or other felony, may have been convicted.' (Emphasis added.)

Appellant also argues that unless section 12022 is interpreted in the peculiar fashion advocated by him, the provision of the section requiring the person be 'armed' with the weapon when committing the crime becomes meaningless. He concedes that the jury properly was instructed that: 'A person is 'armed with' a weapon when he carries such weapon as a means of offense or defense.' ⁴

This argument is equally unsound. As pointed out in the Shull and O'Donnell (Rodgers) cases, supra, section 12022 does not make the possession of the weapon a crime. Sections 12021 and 12025 cover this aspect of the wrong; section 12022 merely increases the punishment to be administered when a person having 'armed' himself, as that term is defined, commits a separate...