People v. Sloan

• Decision Date: 16 August 2007
• Docket Number: No. S132605.,S132605.
• Citation: 64 Cal.Rptr.3d 137,164 P.3d 568,42 Cal.4th 110
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Aaron Patrick SLOAN, Defendant and Appellant.

64 Cal.Rptr.3d 137

42 Cal.4th 110

164 P.3d 568

The PEOPLE, Plaintiff and Respondent, v. Aaron Patrick SLOAN, Defendant and Appellant.

No. S132605.

Supreme Court of California.

August 16, 2007.

John Doyle and William J. Arzbaecher, under appointments by the Supreme Court, for Defendant and Appellant.

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.

BAXTER, J.

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, 228 Cal.Rptr. 509, 721 P.2d 595 (Pearson).) Our recent decision in People v. Reed (2006) 38 Cal.4th 1224, 45 Cal.Rptr.3d 353, 137 P.3d 184 (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, 45 Cal.Rptr.3d 353, 137 P.3d 184.) 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 part of an accusatory pleading for purposes of identifying lesser included offenses. (See People v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101, 192 Cal. Rptr. 748, 665 P.2d 520 (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, 103 Cal.Rptr.2d 698, 16 P.3d 118.)

We therefore conclude the judgment of the Court of Appeal, which is inconsistent with the rule announced in Reed, must be reversed.

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 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, 45 Cal.Rptr.3d 353, 137 P.3d 184, "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 [80 Cal.Rptr.2d 489, 968 P.2d 48].)' (People v. Montoya (2004) 33 Cal.4th 1031, 1034 [16 Cal.Rptr.3d 902, 94 P.3d 1098].) 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 is prohibited. (People v. Ortega, supra, at p. 692 [80 Cal.Rptr.2d 489, 968 P.2d 48]; People v. Pearson (1986) 42 Cal.3d 351, 359-360 [228 Cal.Rptr. 509, 721 P.2d 595].)" (Reed, supra, 38 Cal.4th at pp. 1226-1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

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, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

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 [16 Cal. Rptr.3d 902, 94 P.3d 1098].) `[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 [79 Cal.Rptr.2d 195, 965 P.2d 713].) ... [¶] 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 [173 Cal.Rptr. 453, 627 P.2d 183].) 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 [173 Cal.Rptr. 453, 627 P.2d 183].) 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 [173 Cal.Rptr. 453, 627 P.2d 183].)" (Reed, supra, 38...