Reset A A Font size: Print

Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roger NELUMS, Defendant and Appellant.

Cr. 11001.

Decided: June 24, 1981

James D. Skow, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Janice Rogers Brown, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a judgment of conviction entered after he pled guilty to three counts of robbery (Pen.Code, s 211) and was found by the trial court to have been armed with a firearm in the commission of one of the robberies (Pen.Code, s 12022, subd. (a)). Defendant's sole contention on appeal is that the trial court erred in excluding as irrelevant proffered evidence that the firearm for which his sentence was enhanced was inoperable. We agree with him that the court's evident conclusion that a firearm need not be operable to support an enhancement under Penal Code section 12022, subdivision (a), was erroneous. Accordingly, we shall remand this case to the trial court for the limited purpose of permitting it to make a new finding on the “armed” allegation, considering evidence of the operability of the firearm in question.

Defendant was charged in two informations with five counts each of robbery and burglary (Pen.Code, s 459), six counts of assault with a deadly weapon (Pen.Code, s 245, subd. (a)) and one count of conspiracy to commit robbery (Pen.Code, § 182), arising out of a series of tavern robberies. It was also alleged that in the commission of the foregoing offenses, defendant was armed with, and personally used, a firearm, for which enhanced punishment is prescribed by Penal Code sections 12022, subdivision (a), and 12022.5, respectively. Finally, he was alleged to have suffered a prior prison term within five years of the present offenses. (Pen.Code, s 667.5.)

On the day his trial was set to commence, after the trial court granted the prosecution's motion in limine to exclude evidence as to the firearm's operability, defendant pled guilty to three counts of robbery and admitted the “armed with a firearm” allegation as to one of the counts in exchange for dismissal of the other charges and allegations, with the understanding, shared by the prosecution, that he would not be precluded thereby from contesting the evidentiary ruling on appeal. At a subsequent hearing, however, due to its concern that his admission of the allegation would “probably” prevent him from obtaining appellate review of the evidentiary ruling,1 the trial court rejected the plea bargain and permitted defendant to enter into a modified bargain wherein he reaffirmed his guilty pleas but withdrew his admission of the firearms allegation and agreed to a court trial on that issue. The court then took evidence relating to the allegation in the form of preliminary hearing testimony which it was stipulated could be considered and a further stipulation that defendant or a co-principal “had in his physical possession an object which was designed to shoot, ․ and which ․ had the appearance of shooting capability.” It again refused to permit defendant to present evidence that the gun was inoperable on the ground that such evidence would be irrelevant. Based on the foregoing, the court then found to be true the allegation that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a).


At the outset we consider the People's argument that defendant may not now object to the trial court's evidentiary ruling because he failed to obtain a certificate of probable cause required by Penal Code section 1237.5.2 Despite defendant's improvident concession of a “default” in this regard (from which he asks to be relieved), we have concluded that the statute does not encompass the particular ground urged by him in this appeal.

“In spite of the fact that section 1237.5 refers generally to an appeal ‘from a judgment of conviction upon a plea of guilty’ it seems clear that the section was intended to apply only to a situation in which a defendant claims that his plea of guilty was invalid.” (People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881.) Thus, in Ward, it was held that the requirement of a certificate of probable cause did not apply to a criminal defendant's assertions of error at a court trial to determine the degree of his offense after he pled guilty to murder (see Pen.Code, ss 1157, 1182); the court noted that the defendant did not challenge the validity of his plea but complained only of errors which occurred in proceedings held subsequently to the plea. (Id., at pp. 574-576, 58 Cal.Rptr. 313, 426 P.2d 881; see also People v. Delles (1968) 69 Cal.2d 906, 909, 73 Cal.Rptr. 389, 447 P.2d 629 (court noncompliance with plea bargain granting probation by subsequent revocation before commencement of probation period); People v. Kaanehe (1977) 19 Cal.3d 1, 8, 136 Cal.Rptr. 409, 559 P.2d 1028 (prosecutor's breach of plea bargain by recommending commitment to state prison).) This limitation on the scope of Penal Code section 1237.5 has been recognized and codified in rule 31(d) of the California Rules of Court, which provides, in pertinent part: “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of such plea which do not challenge the validity of the plea the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.”

The instant case is analytically indistinguishable from Ward.3 Defendant here pled guilty to three counts of robbery and agreed to leave the determination of the truth of the enhancement allegation to truncated court trial on the same day. He does not now challenge the validity of his guilty pleas, but asserts only that the court erred in excluding evidence at that trial, as his notice of appeal makes clear. We do not consider it significant that the court formally “accept(ed)” the plea bargain and dismissed the remaining charges after the brief trial on the firearms allegation, since, as the court itself observed, defendant had previously “entered” his guilty pleas, for all intents and purposes, without any qualifications relating to the outcome of the limited trial. Whether or not the trial technically followed the “entry” of his guilty pleas in accordance with rule 31(d) of the Rules of Court, we have no difficulty in holding that this case is embraced by the rule enunciated in Ward, of which rule 31(d) is merely a codification, permitting appellate review of errors occurring “subsequent to the plea” without the necessity of complying with Penal Code section 1237.5. (People v. Ward, supra, 66 Cal.2d at p. 574, 58 Cal.Rptr. 313, 426 P.2d 881.)


Relying upon People v. Gaines (1980) 103 Cal.App.3d 89, 162 Cal.Rptr. 827, defendant contends that the object with which he was admittedly armed must have been an operable firearm to support an enhancement under Penal Code section 12022, subdivision (a).4 The People, on the other hand, urge us to reject Gaines as “unpersuasive” and argue that a requirement that the firearm be operable would amount to an improper modification of the plain meaning of the statute. We agree with the result reached in Gaines, though we arrive at it somewhat differently.

The court in Gaines recognized at the outset that section 12022, subdivision (a), is part of a larger legislative response, known as the Dangerous Weapons Control Law (Pen.Code, s 12000 et seq.), to the threat to public safety arising from the prevalence of firearms and other weapons commonly associated with criminal activity. It examined a number of decisions which had considered the question of whether the firearm possessed or used by a defendant must be operable, and discovered evident inconsistencies among them. Although the decisions interpreted several different statutory provisions, the court could not “discern (any) legislative purpose that as to some of the statutes the firearms be operable and as to others, not operable.” (People v. Gaines, supra, 103 Cal.App.3d at p. 98, 162 Cal.Rptr. 827.) Faced with what it perceived to be a simple conflict of authority, then, the court determined to follow what was, in its view, “the greater and more persuasive authority” and accordingly held that a firearm must be operable to support an enhancement under Penal Code section 12022, subdivision (a). (Gaines, at p. 98, 162 Cal.Rptr. 827.) Our own examination of the same decisions has persuaded us that, contrary to the position taken by the court in Gaines, the various statutes do differ as to the requirement that the firearm be operable, depending upon the specific statutory objectives underlying them, as both defendant and the People appear to agree; however, we have concluded that the specific legislative purposes behind the adoption of Penal Code section 12022, subdivision (a), contemplate an operable firearm.

With one exception, discussed below, the decisions relied upon in Gaines are interpretations of Penal Code section 12021, which prohibits possession by an ex-felon of “any pistol, revolver, or other firearm capable of being concealed upon the person.”5 This latter phrase is defined in Penal Code section 12001.6 Because the original language of section 12001 expressly excluded “antique pistols or revolvers incapable of use as such” (added by Stats.1953, ch. 36, s 1, p. 653), courts divined that the legislative “purpose of (section 12021 was) to make it unlawful for ex-convicts to carry a gun that will shoot and not merely objects that look like usable guns.” (People v. DeFalco (1959) 176 Cal.App.2d 590, 593, 1 Cal.Rptr. 578; People v. Jackson (1968) 266 Cal.App.2d 341, 347-349, 72 Cal.Rptr. 162.) Subsequent amendments to section 12001 deleting the aforementioned exclusion (Stats.1965, ch. 281, s 1, p. 1281) and explicitly including “the frame or receiver of any such weapon” induced one court to hold that this rule had lost its viability (People v. Thompson (1977) 72 Cal.App.3d 1, 3-5, 139 Cal.Rptr. 800; following dicta in People v. Favalora (1974) 42 Cal.App.3d 988, 993-994, 117 Cal.Rptr. 291 (holding possession of an inoperable sawed-off shotgun was a violation of Penal Code section 12020)), but, as the court in Gaines emphasized (103 Cal.App.3d at p. 98, 162 Cal.Rptr. 827), the Supreme Court continued to refer to the requirement of an “operable firearm” as recently as 1979, in People v. Woodard (1979) 23 Cal.3d 329, 340, 152 Cal.Rptr. 536, 590 P.2d 391 (citing People v. Jackson, supra, 266 Cal.App.2d at pp. 348-349, 72 Cal.Rptr. 162).

The Gaines court also mentioned People v. Torres (1971) 19 Cal.App.3d 724, 97 Cal.Rptr. 139 as a decision requiring an operable firearm for a “use” enhancement under Penal Code section 12022.5 (id., at p. 733, 97 Cal.Rptr. 139), but that opinion's dicta to that effect were subsequently repudiated, in People v. Williams (1976) 56 Cal.App.3d 253, 255, 128 Cal.Rptr. 408, by the court which decided Torres, in favor of the rule we adopted in People v. Hayden (1973) 30 Cal.App.3d 446, 450-452, 106 Cal.Rptr. 348 (disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 545 P.2d 833), which determined that the legislative purposes behind section 12022.5 would not be served by restricting its application to operable weapons only. Hayden's construction of section 12022.5 has been accepted.People v. Jackson (1979) 92 Cal.App.3d 899, 901-903, 155 Cal.Rptr. 305; see also People v. People v. Smith (1974) 38 Cal.App.3d 401, 410, fn. 6, 113 Cal.Rptr. 409.) Contrary to the People's contention, however, we have concluded that our reasoning in Hayden supports rather than negates the requirement that a firearm must be operable to be the basis for an enhancement under Penal Code section 12022, subdivision (a).

We recognized in Hayden that courts had interpreted section 12021 to apply only to operable firearms. We pointed out, however, that section 12022.5, which was adopted in 1969, was never limited in its application to concealable firearms as defined in Penal Code section 12001, and we were obliged therefore “to interpret section 12022.5 to achieve its individual objective without regard to the case law” requiring an operable firearm. (Emphasis added.) (People v. Hayden, supra, 30 Cal.App.3d at pp. 450-451, 106 Cal.Rptr. 348.) This objective, we observed, had recently been identified by the Supreme Court in People v. Chambers (1972) 7 Cal.3d 666, at page 672, 102 Cal.Rptr. 776, 498 P.2d 1024, as the deterrence of “conduct which produces a fear of harm” as well as “conduct which actually produces harm.” (Emphasis added.) We noted that “(t)he fear may arise either from a gun that really shoots or from one which is designed to shoot and gives the appearance of shooting capability. Persons held at gunpoint have no stomach for inquiry. Danger radiates not only from the weapon, but from the defensive reactions of others. In response to the lawbreaker's weapon, operable or not, a victim or law officer may himself resort to a firearm.” (Fn. omitted.) (Hayden, at p. 452, 106 Cal.Rptr. 348.)

The provision with which we are presently concerned, Penal Code section 12022, subdivision (a), in contrast, from its adoption in 1953 until 1977, expressly applied to persons “armed with any pistol, revolver, or other firearm capable of being concealed upon the person.” Thus, the case law interpreting sections 12001 and 12021 as contemplating an operable firearm shed light on its intended meaning. The recognized purpose of the provision, “to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime” because of the possibility that it would be used if anyone attempted to interrupt the offense (People v. Reaves (1974) 42 Cal.App.3d 852, 856, 117 Cal.Rptr. 163, emphasis added; People v. Pheaster (1963) 215 Cal.App.2d 754, 757-758, 30 Cal.Rptr. 363), was also consistent with a rule contemplating an operable firearm. Although it was amended in 1976 to embrace “a pistol, revolver or any other firearm,” and not merely concealable ones (Stats.1976, ch. 1139, s 304, p. 5161, operative July 1, 1977), and then again in 1977 to refer simply to “a firearm” (Stats.1977, ch. 165, s 91, p. 678, eff. June 29, 1977, operative July 1, 1977), we see nothing in those amendments to indicate a fundamental change in the purpose of section 12022, subdivision (a).

Accordingly, construing the provision in light of its “individual objective” (People v. Hayden, supra, 30 Cal.App.3d at p. 451, 106 Cal.Rptr. 348), we hold that a criminal defendant's sentence may be enhanced pursuant to section 12022, subdivision (a), only if the firearm with which he is armed is operable, and that the trial court therefore erred in refusing to permit defendant to present evidence that the weapon with which he was armed was actually inoperable. In the peculiar posture of this case, it appears appropriate to remand this case to the trial court for a retrial of the enhancement allegation but to otherwise affirm defendant's convictions.

The sentence enhancement imposed pursuant to Penal Code section 12022, subdivision (a), is stricken pending retrial of the allegation. In all other respects, the judgment is affirmed.


1.  In fact, the People in their brief make the very argument that the court sought thereby to preclude, i. e., that defendant waived his right to contest the court's evidentiary ruling by admitting the firearms allegation. The argument appears to be based upon an incomplete reading of the record. Surely the People cannot contend that a rejected or properly withdrawn guilty plea or admission deprives a defendant of his right to appellate review from a subsequent conviction after a trial.

2.  Penal Code section 1237.5 provides: “No appeal shall be taken by defendant from a judgment of conviction upon a plea or guilty of nolo contendere, or a revocation of probation following an admission of violation, except where: (P) (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and (P) (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

3.  It seems worth noting that the Ward opinion specifically endorsed a decision which, without even mentioning Penal Code section 1237.5, reviewed a finding that the defendants, who had pled guilty to robbery, were armed with a deadly weapon and thus were guilty of robbery in the first degree. (People v. Hall (1930) 105 Cal.App. 359, 361, 287 P. 533). (People v. Ward (1967) 66 Cal.2d 571, 576, 58 Cal.Rptr. 313, 426 P.2d 881.)

4.  Penal Code section 12022, subdivision (a), provides: “Any person who is armed with a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of one year, unless such arming is an element of the offense of which he was convicted. This additional term shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with a firearm, whether or not such person is personally armed with a firearm.”

5.  Penal Code section 12021, subdivision (a), provides: “(a) Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or who is addicted to the use of any narcotic drug, who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both.”

6.  Penal Code section 12001 provides: “ ‘Pistol,’ ‘revolver,’ and ‘firearm capable of being concealed upon the person’ as used in this chapter shall apply to and include any device, designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and which has a barrel less than 12 inches in length. ‘Pistol,’ ‘revolver,’ and ‘firearm capable of being concealed upon the person’ as used in Sections 12021, 12072, and 12073 include the frame or receiver of any such weapon.”

BLEASE, Associate Justice.

REGAN, Acting P. J., and CARR, J., concur.