Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Carlos CHICO, Defendant and Appellant.

No. A092567.

Decided: December 21, 2001

William Richard Such,First DistrictAppellate Project, Counsel for Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Rene A. Chacon and Nanette Winaker, Deputy Attorneys General, Counsel for Respondent.

 Carlos Chico was sentenced to state prison after pleading guilty to five counts of robbery.   On appeal, and by associated petition for habeas corpus, he contends that the trial court erred by imposing a consecutive firearms use enhancement under Penal Code section 12022.53, subdivision (f) (§ 12022.53(f)), for each of four counts stemming from defendant's simultaneous robbery of four victims at gunpoint.1  We hold that section 12022.53(f) contemplates a separate enhancement for each separately punishable underlying offense, and was thus properly applied here.   Accordingly, we affirm the judgment.


According to the facts recited in the probation report, defendant and a companion robbed a drug store in San Carlos on January 16, 1998.   In the course of the robbery defendant's companion held a store employee at gunpoint.   A week later, defendant and the same companion robbed a market in Woodside.   On this occasion defendant pointed a handgun at three clerks and the store's owner, whom he ordered to remove and deliver cash from an open safe.   Defendant was charged with five counts of second degree robbery in violation of section 212.5, subdivision (c).  The first four counts, one for each victim, stemmed from the Woodside incident.   As to each of these, it was alleged that he used a firearm so as to be subject to an enhancement under section 12022.53.   As to the fifth count, which grew out of the San Carlos robbery, he was charged with an enhancement under section 12022, subd. (a)(1), based on being armed with a firearm.

Defendant pleaded guilty to all counts.   The trial court sentenced him to 21-/3 years, consisting of a 3-year base term on count one, consecutive 1-year terms on counts 2 and 3, a 10-year firearms enhancement on count 1, and consecutive enhancements of 3-1/313 years on counts 2 and 3, with concurrent terms and enhancements on counts 4 and 5. On defendant's petition for habeas corpus, we issued an order to show cause why the sentence should not be vacated for exceeding an indicated sentence of 20-2/323 years.   While that matter was pending before this court, the trial court modified the sentence by reducing the base term on count 1 to 2 years, thereby reducing the total sentence to 20-/3 years.   This appeal followed.


I.Certificate of Probable Cause

 Defendant's sole contention is that the sentence reflects a misapplication of section 12022.53(f) insofar as it imposes consecutive enhancements based upon the multiple victims in the Woodside robbery.   Respondent replies that (1) this point is not available on appeal because it amounts to a challenge to the plea bargain and defendant did not obtain a certificate of probable cause as required by section 1237.5;  and (2) on the merits, the sentence reflects a proper application of the statute.

We reject respondent's argument that this appeal challenges the validity of the plea and thus requires a certificate of probable cause.   In the cases cited by respondent, a defendant attempted to challenge a specific negotiated sentence.  (People v. Panizzon (1996) 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061 [life imprisonment plus 12 years];  People v. McNight (1985) 171 Cal.App.3d 620, 217 Cal.Rptr. 393 [prison term of 21 years].)  Respondent would have us extend these authorities to any sentence falling under a negotiated ceiling.   On its face, such an agreement contemplates that the trial court will arrive at a sentence by a lawful exercise of discretion, as in nonnegotiated cases, but subject to the constraints of the bargain.   We do not believe a challenge to the sentencing calculus in such a case constitutes, in substance or form, a challenge to the validity of the plea.   It therefore does not require a certificate of probable cause.


Multiple Enhancements

 On the merits, we hold that section 12022.53(f) contemplates multiple enhancements where a defendant uses a firearm in a robbery, or similar crime of violence, against multiple victims.

Section 12022.53, subdivisions (b) through (d), provide additional terms of imprisonment of 10 years, 20 years, and 25 years to life, respectively, for anyone who, in the commission of specified felonies, uses a firearm, discharges a firearm, or discharges a firearm causing great bodily injury.   Subdivision (f) provides, “Only one additional term of imprisonment under this section shall be imposed per person for each crime.   If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.   An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section․” (Italics added.)

Defendant contends that the phrase “for each crime” is ambiguous where a defendant engages in a single instance of criminal conduct against multiple victims.   He concedes that “[a]s lawyers use the term ‘crime,’ there may have been four crimes.”   However, he contends, “laymen do not use the term to refer to the multiple violations that almost every criminal episode can be divided into.”  (Italics added.)   Instead, the argument goes, laypersons think of a “crime” as comprising the conduct punishable by criminal law.   Thus, in accordance with the rule of lenity, which resolves ambiguities in favor of the accused, section 12022.53 must be construed to permit only one enhancement for each instance of conduct for which the defendant is being punished.

 We reject the premise that the term “crime” is rendered ambiguous by the lay meaning that defendant attributes to it.  “It is true that courts ordinarily give the words of a statute the usual, everyday meaning they have in lay speech.  [Citation.]   But that rule has an important exception ․:  when a word used in a statute has a well-established legal meaning, it will be given that meaning in construing the statute.   This has long been the law of California․ [¶]․ [¶] The rule applies most obviously when the meaning of the word in question is wholly or primarily legal.  [Citations.]   But the rule is also applicable when the word has both a specific legal meaning and a more general sense in informal legal usage or in lay speech.  [Citations.]   In that event the lawmakers are presumed to have used the word in its specifically legal sense.”  (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19-20, 56 Cal.Rptr.2d 706, 923 P.2d 1, italics omitted;  see § 7, subd.  (16) [“Words and phrases must be construed according to the context and the approved usage of the language;  but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning.”].)

 The term “crime” has a “well-established legal meaning”:  a breach of duty punishable by the criminal law.  (See Black's Law Dict. (7th ed.1999) p. 377 [defining “crime” as “[a] social harm that the law makes punishable;  the breach of a legal duty treated as the subject-matter of a criminal proceeding.”].) Where a single act breaches more than one duty and each such breach is separately and additionally punishable-as where a single act of violence is directed against multiple victims-multiple crimes have been committed.

This meaning is not contrary to the lay definition, but refines and qualifies it.   In lay usage, there is rarely an occasion to distinguish between conduct violating the criminal law, and the violation of law in and of itself.   So complete is the lay conflation of these concepts that one popular dictionary gives both meanings not as alternatives but as variants of a single definition.  (Webster's Ninth New Collegiate Dict. (1984) p. 307 [defining “crime” as “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law;  esp.:  a gross violation of law”].)

In any event, in legal usage the word “crime,” when used advisedly, refers not to a particular instance of conduct, but to a particular violation of a criminal statute.   Consistent with this conception, courts have spoken of situations in which “an act violates more than one statute and thus constitutes more than one crime.”  (People v. Akins (1997) 56 Cal.App.4th 331, 338, 65 Cal.Rptr.2d 338;  see 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 24, pp. 230-231, italics added [“Even though separate crimes are charged and proved, P.C. 654 provides that there can be only one punishment ․ for a single act or omission”].)  Similarly, in People v. Deloza (1998) 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945, the court referred to the robbery of multiple victims as “robberies” and “crimes,” even while holding that “they were clearly committed on the ‘same occasion.’ ”   (Id. at pp. 595-596, 76 Cal.Rptr.2d 255, 957 P.2d 945.)   In People v. Lawrence (2000) 24 Cal.4th 219, 223, 99 Cal.Rptr.2d 570, 6 P.3d 228, the court analyzed Deloza in depth, again referring to “the defendant's crimes ” in that case.  (Italics added;  see id. at p. 227, 99 Cal.Rptr.2d 570, 6 P.3d 228.)   Many other courts have described convictions of multiple-victim offenses, including robbery, as involving multiple “crimes.”  (E.g., People v. Bonner (2000) 80 Cal.App.4th 759, 765, 95 Cal.Rptr.2d 642, italics added [defendant guilty of two attempted robberies where he planned to steal hotel receipts from manager and assistant manager;  “at the moment appellant entered the garage, he intended to rob both the manager and assistant manager.   Any later event that interrupted those crimes was irrelevant to appellant's liability ․”];  id. at p. 764, 95 Cal.Rptr.2d 642 [“had he actually confronted the two in the garage but been interrupted before completing the crimes, he could properly be convicted of two counts of attempted robbery”];  In re Asean D. (1993) 14 Cal.App.4th 467, 474-475, 17 Cal.Rptr.2d 572 [“robberies” committed by stealing car from two occupants were separately punishable under principle that section 654 does not bar “separate punishments for separate crimes of violence committed against separate victims” (italics added)];  People v. Ramos (1982) 30 Cal.3d 553, 587, 180 Cal.Rptr. 266, 639 P.2d 908 [under multiple victim exception to section 654, defendant “may be convicted and punished for each crime of violence committed against a different victim” in single course of conduct], revd. on other grounds, California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171;  People v. Lagomarsino (1950) 97 Cal.App.2d 92, 98, 217 P.2d 124, italics added [“California ․ has definitely aligned itself with those states that hold that, so far as crimes against the person are concerned (murder, assault, robbery, etc.), although there may be but one act or intent, there are as many crimes as there are persons affected.”];  id. at p. 99, 217 P.2d 124 [“a separate crime exists as to each person harmed by the act of defendant”];  People v. Plumlee (1960) 177 Cal.App.2d 224, 227, 2 Cal.Rptr. 84 [quoting Lagomarsino];  People v. Galvin (1957) 148 Cal.App.2d 285, 293, 306 P.2d 575 [citing Lagomarsino in rejecting claim that two multiple-victim robberies “constitute[d] but one, or, at most, two crimes”;  “In crimes against the person, there are as many offenses as persons affected.”] )

In the absence of some sound reason to the contrary, we must conclude that when the Legislature enacted section 12022.53(f), it had in mind the accepted legal meaning of “crime” as a distinct, separately and additionally punishable violation of the criminal law.

In an attempt to dissuade us from this conclusion, defendant asserts that section 12022.53(f) originated as a proposed initiative measure, which the Legislature “mirrored” in the statute.2  He asserts that the legislative history contains “no indication that the Legislature attributed any meaning to ‘each crime’ ” other than that intended by the drafter of the initiative measure.   He further asserts that the drafter intended the term “crime” to mean a single criminal transaction, such that a robbery simultaneously perpetrated against multiple victims will support only one enhancement under section 12022.53.   In the companion petition for habeas corpus, defendant offers support for this reading in the form of private correspondence with the drafter and another proponent of the statute.   He prays for an evidentiary hearing “in particular to permit [defendant] an opportunity to examine [the drafters] ․ as to the meaning of the ‘each crime’ language․”

 We reject the proposition that when the Legislature enacts a proposed but unadopted initiative into law, the effect of the resulting statute may be determined by consulting the drafters or supporters of the initiative, or is otherwise affected by the meanings they might have attached to the words used.   Even the personal understanding of an individual legislator, including a bill's author, is relevant only insofar as it might be inferred to have been acted upon by the Legislature as a body.  (See In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589, 128 Cal.Rptr. 427, 546 P.2d 1371 [“In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it․ Nor do we carve an exception to this principle simply because the legislator whose motives are proffered actually authored the bill in controversy.”];   cf. id. at p. 590, 128 Cal.Rptr. 427, 546 P.2d 1371, italics in original [author's letter, published by unanimous resolution in legislative journal, as to intent of bill enacted in previous session, was worthy of consideration because it gave “evidence of more than the personal understanding of the letter's author” in that it stated not only his own intent “but that he argued to that effect in obtaining the bill's passage”], citing Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 603, 45 Cal.Rptr. 512 [assemblyman's testimony properly considered where it “was not an expression of his own opinion ․ but a reiteration of the discussion and events which transpired in the Assembly committee hearing when the amendments ․ were under consideration.”].)

Nowhere in defendant's argument do we see any basis to suppose that the understanding assertedly held by the initiative's author was communicated to or acted upon by the Legislature as a body.   Defendant's showing is therefore inadequate to support a departure from the well-established legal meanings of the terms chosen.

Nor does it appear that an inquiry into legislative history would otherwise assist defendant.   Defendant has not directed us to any affirmative indication of the Legislature's actual intent, and such relevant discussion as we have found tends to establish that the purpose of subdivision (f) was to address not the situation before us but the natural effect of the mutual inclusiveness of the three enhancements set forth in section 12022.53.   The statute imposes progressively more severe penalties for use of a firearm, discharge of a firearm, and injurious discharge of a firearm.   Of logical necessity, any person who engages in the more serious forms of conduct thereby engages in the lesser as well.   Thus one who discharges a firearm necessarily uses a firearm, and one who injuriously discharges a firearm necessarily commits the lesser acts of discharging and using a firearm.   Without legislative guidance it would be possible to argue that one who commits the more serious of these acts is thereby subjected not only to the aggravated penalty but also to the lesser penalties for the lesser, necessarily included conduct.   The purpose of subdivision (f), insofar as it is pertinent here, is to preclude such an argument by clarifying that if a more severe enhancement applies, that enhancement alone may (and must) be imposed.

This intention is reflected in the only legislative explication we find in the legislative history.   It appears not in the history of the bill that actually became section 12022.53(f), but in a committee report concerning Assembly Bill No. 892, the failed bill from the previous session, which was later described as “virtually identical” to the bill that was eventually adopted.  (Assembly Com. on Appropriations, Rep. on Assem. Bill No. 4, for hearing date May 14, 1997, p. 2.) Like the current statute, the earlier bill contained a subdivision (f), which allowed only one enhancement “for each crime.”  (Assem. Bill No. 892 (1995-1996 Session) as amended Jan. 9, 1996.)   Multiple legislative reports described the effect of this limitation as follows (italics added):  “Only one of the enhancements described above shall be imposed for each crime. If more than one applies, only the greatest one found true shall be imposed by the court.”  (Assem.   Com. on Public Safety, Rep. on Assem. Bill No. 892, for hearing January 9, 1996, p. 4;  Assem. Third Reading, Assem. Bill No. 892, as amended Jan. 23, 1996, p. 2.) The italicized language is, of course, a reference to the three escalating, and overlapping, enhancements.

 In short, such of the legislative history as we have reviewed establishes only that the purpose of the subdivision is to ensure that a defendant who engages in one of the more aggravated forms of firearms use will receive the aggravated punishment, but will not be additionally punished by virtue of the necessary inclusion of the lesser forms of misconduct.

We derive further support for our rejection of defendant's arguments from People v. Perez (2001) 86 Cal.App.4th 675, 682, 103 Cal.Rptr.2d 533.   The defendant there shot his wife's sister and brother-in-law, the latter fatally, in a domestic dispute.   He was convicted of murder and attempted murder, and received two 25-to-life enhancements under section 12022.53.   On appeal he contended that section 12022.53(f) authorized only one enhancement “per person” and that this could “only be read to mean that if multiple enhancements are found true under section 12022.53, only a single enhancement can be imposed.”  (Id. at p. 681, 103 Cal.Rptr.2d 533.)   In rejecting this contention, the court declared that “the plain language of the first sentence ․ makes clear that the subdivision (f) limitation applies ‘for each crime,’ not each criminal.”  (Ibid.) “Under the plain meaning rule of statutory construction, defendant's contention must be rejected.   The first sentence of [section 12022.53,] subdivision (f) presents no ambiguity as to the Legislature's intent to apply a limitation to one enhancement per crime.”   (Id. at p. 682, 103 Cal.Rptr.2d 533.)   The court then observed that even if subdivision (f) were ambiguous, the ambiguity had been resolved by a legislative declaration of intent accompanying a subsequent corrective amendment.  (Id. at p. 682, 103 Cal.Rptr.2d 533, quoting Stats.1998, ch. 936, § 28.)   While this declaration is not directly applicable to the ambiguity asserted by defendant, its adoption without addressing or even acknowledging any such ambiguity further distances the statute from any interpretation based upon supposed “lay” meanings.   Moreover, the court went on to reason that the defendant's interpretation there-like defendant's here-would conflict with the overall legislative purpose of the statute:  “[U]nder defendant's proposed construction, a criminal using a firearm could go on a shooting spree, injure or kill numerous victims, and receive only one enhancement for the gun use, as though he had injured just one victim.   In light of the legislative intent to promote public safety and discourage the use of guns, such a construction would frustrate rather than promote the Legislature's declared intent in enacting and amending the statute.   Therefore, it is rejected.”  (Ibid.)

The judgment is affirmed.


1.   All further statutory references are to the Penal Code.

2.   In some of the committee reports for the bill that became section 12022.53, Mike Reynolds, whom defendant describes as the author of the failed “10-20-Life Initiative,” is listed as the “source” of the bill.  (See Sen. Rules Com., Off. of Floor Analyses, Rep. on Assem. Bill No. 4, as amended Sept. 10, 1997;  Sen. Com. on Public Safety, Rep. for Assem. Bill No. 4, for hearing date July 8, 1997.)   Another report notes that the bill was “virtually identical” to Assembly Bill No. 892 in the previous session, which was “also similar to a proposed 1995 initiative by three strikes supporters that failed to collect sufficient signatures.”  (Assem. Com. on Appropriations, Rep. on Assem. Bill. No. 4, for hearing date May 14, 1997, p. 2.)The aforementioned Assembly Bill No. 892 was described during its course through the Legislature as “mirror[ing] a measure presently attempting to qualify as a state ballot initiative.”  (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 892, for hearing January 9, 1996, p. 5.) Later in that session it was reported that the initiative measure had failed to qualify for the ballot.  (Sen. Com. on Crim. Procedure, Rep. on Assem. Bill No. 892, for hearing July 2, 1996, pp. 6-7.)


REARDON, Acting P.J., and KAY, J., concur.