People v. Reed , 2006 Daily Journal DAR 8733 ( 2006 )

Opinion

CHIN, J.,

On January 24, 2004, two San Francisco police officers found defendant, Vincent Reed, a convicted felon, in possession of a loaded and concealed .25-caliber automatic pistol. In addition to other crimes not relevant here, he was charged with and convicted of (1) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)),¹ (2) carrying a concealed firearm (§ 12025, subd. (a)(2)), and (3) carrying a loaded firearm while in a public place (§ 12031, subd. (a)(2)(A)). The court sentenced him to prison for three years on the first count, including a prior prison term enhancement, and stayed the sentences on the remaining weapons counts. The Court of Appeal affirmed the judgment. Defendant contends he was improperly convicted of being a felon in possession of a firearm in addition to the other weapons crimes.

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 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 [228 Cal.Rptr. 509, 721 P.2d 595].) Here, the trial court stayed execution of sentence on two of the weapons convictions, so multiple punishment is not at issue. This case concerns only multiple conviction.

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 [79 Cal.Rptr.2d 195, 965 P.2d 713].) Defendant argues that, as charged, being a felon in possession of a firearm is a lesser included offense of the other two weapons crimes, thus prohibiting conviction of the former crime.

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.) 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.)

We have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) Defendant does not claim that being a felon in possession of a firearm is necessarily included within the other weapons offenses under the elements test. He does, however, argue that it is necessarily included under the accusatory pleading test.

In this case, the amended information alleged as to all three weapons offenses that defendant was a convicted felon. Accordingly, as charged, defendant could not commit the crimes of carrying a concealed firearm and carrying a loaded firearm while in a public place without also being a felon in possession of a firearm. The Court of Appeal concluded, however, that the accusatory pleading test does not apply to determine whether a defendant may be convicted of multiple charged offenses. We granted defendant’s petition for review to decide whether the Court of Appeal was correct.

Several opinions, including some from this court, have assumed, without discussion, that both the elements and the accusatory pleading tests apply in deciding whether multiple conviction of charged offenses is proper. But in each case, the assumption was unnecessary to the holding because each opinion either found the offenses not necessarily included or actually applied only the elements test. (People v. Sanchez (2001) 24 Cal.4th 983, 988 [103 Cal.Rptr.2d 698, 16 P.3d 118]; People v. Ortega, supra, 19 Cal.4th at p. 698; People v. Murphy (2005) 134 Cal.App.4th 1504, 1507-1508 [36 Cal.Rptr.3d 872]; People v. Belmares (2003) 106 Cal.App.4th 19, 23 [130 Cal.Rptr.2d 400]; People v. Strohman (2000) 84 Cal.App.4th 1313, 1316 [101 Cal.Rptr.2d 520]; People v. Thomas (1991) 231 Cal.App.3d 299, 305 [282 Cal.Rptr. 258]; People v. Nicholson (1979) 98 Cal.App.3d 617, 623 [159 Cal.Rptr. 766]; see also People v. Ausbie (2004) 123 Cal.App.4th 855, 862-863 [20 Cal.Rptr.3d 371] [recognizing the question and applying the accusatory pleading test out of caution, then holding that the offenses are not necessarily included].)

We have found no opinion invalidating multiple convictions due to the accusatory pleading test.² In People v. Pearson, supra, 42 Cal.3d at page 356, footnote 2, we noted that, “while an expanded definition of necessarily included offenses [i.e., employing both the elements test and the accusatory pleading test] may be appropriate in the context of [conviction of an uncharged offense], there appears little reason to enlarge the meaning of the same phrase as it is used in other situations.” We did not, however, decide the question because the offenses were not included in each other even under the accusatory pleading test. (Ibid.) More recently, we again recognized this question but did not decide it. (People v. Montoya, supra, 33 Cal.4th at pp. 1035-1036.)

As we noted in People v. Montoya, supra, 33 Cal.4th at page 1035, the Court of Appeal decisions that specifically consider this question have concluded that the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467 [26 Cal.Rptr.2d 610]; People v. Watterson, supra, 234 Cal.App.3d at p. 947, fn. 15; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171 [282 Cal.Rptr. 228].) Now that the question is squarely presented, we agree. In deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in Scheidt, “only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.” (People v. Scheidt, supra, at pp. 165-166.)

The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. “As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.” (People v. Lohbauer, supra, 29 Cal.3d at pp. 368-369.) “Because a defendant is entitled to notice of the charges, it makes sense to look to the accusatory pleading (as well as the elements of the crimes) in deciding whether a defendant had adequate notice of an uncharged lesser offense so as to permit conviction of that uncharged offense.” (People v. Montoya, supra, 33 Cal.4th at p. 1039 (conc. opn. of Chin, J.).) But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. “[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged . . . .” (Ibid.)

The Legislature has defined three separate weapons offenses: possessing a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm in a public place. Defendant committed each of these crimes, albeit during the same course of conduct. The Legislature has made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. (§ 954.) We see no reason to prohibit multiple convictions that section 954 permits simply because of the way the offenses are charged. “To immunize” defendant from conviction of being a felon in possession of a firearm simply because the felony conviction was alleged as to each of the weapons offenses “would be irrational and would frustrate the strong legislative purpose behind [all three] statutes.” (People v. Scheidt, supra, 231 Cal.App.3d at p. 171.)

Applying the accusatory pleading test to charged crimes could also lead to absurd results. Assume, for example, that the defendant robbed and tilled someone and was charged with robbery and murder for those actions. Under the elements test, neither robbery nor murder is necessarily included in the other. One can easily rob without murdering and murder without robbing. Conviction of both crimes would be fully warranted. But if the prosecutor had alleged as to the robbery that the force used in the crime consisted of tilling the victim with malice, then, as alleged, the defendant could not have committed the robbery without also committing murder. If the accusatory pleading test applied, conviction of both crimes would be impermissible. Moreover, the murder would be necessarily included in the robbery, not the other way around, which presumably would require vacating the murder conviction. This outcome would be absurd, would violate the legislative mandate permitting multiple conviction (§ 954), and would serve no apparent purpose.³

Defendant argues that “[j]ust as a ‘rose is a rose is a rose is a rose’ (Gertrude Stein, ‘Sacred Emily’ (1913)), a lesser included offense is a lesser included offense is a lesser included offense.” He contends we must maintain a “logical consistency” in the definition of a necessarily included offense “to make the scheme workable and logical.” However, we believe it is logically consistent to apply the accusatory pleading test when it is logical to do so (to ensure adequate notice) but not when it is illogical to do so (when doing so merely defeats the legislative policy permitting multiple conviction). Our conclusion results in a straightforward overall rule: Courts 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. This rule is not overly complex and, we believe, is quite workable.

We affirm the judgment of the Court of Appeal.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Corrigan, J., concurred.

1 All further statutory citations are to the Penal Code.

2 The concurring and dissenting opinion claims that People v. Richardson (1970) 6 Cal.App.3d 70 [85 Cal.Rptr. 607] and People v. Johnson (1970) 5 Cal.App.3d 844 [85 Cal.Rptr. 238], and perhaps even People v. Rogers (1971) 5 Cal.3d 129 [95 Cal.Rptr. 601, 486 P.2d 129], somehow support its position. (Conc. & dis. opn., post, at pp. 1232-1233.) The continuing validity of the rule stated in these old cases is dubious in light of more recent events. (See People v. Watterson (1991) 234 Cal.App.3d 942, 944-947 [286 Cal.Rptr. 13]; People v. Thomas, supra, 231 Cal.App.3d at pp. 304-306.) We need not decide this question, because those cases, even if still valid, are irrelevant to the issue here. They do not say that “the accusatory pleading alleged facts that, if proven, would establish that the defendant’s transportation of the drugs necessarily included possessing those drugs ....” (Conc. & dis. opn., post, at p. 1233.) Indeed, none of those decisions even mentions the accusatory pleading test or the actual accusatory pleading, and none of them suggests that the accusatory pleading contained anything other than the statutory elements. Whatever the basis might be for the rule stated in those cases, it is not the accusatory pleading test.)

3 The concurring and dissenting opinion would avoid this problem by adopting a modified version of the accusatory pleading rule. It would disregard “allegations in the accusatory pleading that do not allege elements of the offense” (conc. & dis. opn., post, at p. 1234) and, presumably, consider only allegations that do allege elements of the offense. We see no support for this version of the accusatory pleading test either in the cases or in logic; it merely adds complexity for no apparent purpose.