PEOPLE v. EQUARTE

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald EQUARTE, Defendant and Appellant.

Cr. F002833.

Decided: March 29, 1985

Kent A. Barkhurst, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., James T. McNally and James Ching, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Ronald Equarte appeals from a judgment of conviction after jury trial of assault with a deadly weapon.  (Pen.Code, § 245, subd. (a)(1).) 2  The crime was determined to be a serious felony.   A prior conviction was found by the court to be a serious felony conviction.  (§§ 667/1192.7, subd. (c).)  Appellant was sentenced to the upper term of four years plus a five-year enhancement.

I

FACTS *

DISCUSSION

II *Appellant's Conviction is Supported by Substantial Evidence.IIIAppellant's Conviction Under Section 245, Subdivision (a)(1), is Not A “Serious Felony” Conviction Within the Meaning of Sections 667, Subdivision (a)/1192.7, Subdivision (c)(23).

Section 667 was added by Proposition 8 by the California electorate on June 8, 1982.   The section mandates a five-year prison term enhancement for any person convicted of a “serious felony” who previously has been convicted of a “serious felony.” 3  Section 1192.7, subdivision (c), also enacted by Proposition 8, enumerates serious felonies.4

Appellant suffered a prior serious felony conviction for attempted robbery.   (§ 1192.7, subd. (c)(19)/(25).)  Section 1192.7, subdivision (c)(23), defines a serious felony as “any felony in which the defendant personally used a dangerous or deadly weapon.”   The court found appellant's present conviction a serious felony within the meaning of subdivision (c)(23) based on the jury's finding that appellant assaulted the victim with a deadly weapon.   Because assault with a deadly weapon is not one of the expressly enumerated felonies in section 1192.7, subdivision (c), we must decide whether, as a matter of law, a violation of section 245, subdivision (a)(1), without further allegation, is a serious felony within the meaning of the catch-all provision of section 1192.7, subdivision (c)(23).

 The problem is one of statutory interpretation requiring us to ascertain the intent of the enactors of the sections.   Because there is no extrinsic evidence of intent, we examine the language of the statute under accepted rules of interpretation.  (People v. Cook (1984) 158 Cal.App.3d 948, 952, 205 Cal.Rptr. 105.)   In analyzing the code section, we keep in mind that all reasonable doubts in the construction of penal statutes must be resolved in favor of the defendant.  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617;  People v. Gutierrez (1982) 132 Cal.App.3d 281, 284, 183 Cal.Rptr. 31.)

 The drafters of Proposition 8, by which sections 667 and 1192.7 were adopted, were well aware of the crime of assault with a deadly weapon.   This can be inferred from the enumeration of “serious felonies” in section 1192.7, which lists “(11) assault with a deadly weapon or instrument on a peace officer” and “(13) assault with a deadly weapon by an inmate.”   If the maxim of construction, expressio unius est exclusio alterius —expression of the one thing implies the exclusion of another—is applied, it appears the omission of assault with a deadly weapon was intentional.   This conclusion is bolstered by the fact that section 1192.7 enumerates several other forms of assault which the enactors must have thought more egregious crimes than simple assault with a deadly weapon, i.e., “(10) assault with intent to commit rape or robbery,” and “(12) assault by a life prisoner on a noninmate.”   If assault with a deadly weapon was omitted from the enumeration within section 1192.7 because it is included within subdivision (c)(23) “any felony in which the defendant personally used a dangerous or deadly weapon,” then the express listings, “(11) assault with a deadly weapon or instrument on a peace officer” and “(13) assault with a deadly weapon by an inmate,” are unnecessary, as those two offenses would be included as well within (c)(23).   The specific listings would become mere surplusage.   The construing of a statute in a manner rendering specific clauses surplusage is to be avoided.  (People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)

 The Supreme Court's reasoning in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396 supports the conclusion that assault with a deadly weapon is not a serious felony under section 1192.7 simply because it involves a dangerous or deadly weapon.   In Harvey, the Supreme Court discussed the interplay of sections 667.5 and 1170.1, considering the issue of enhancement of a subordinate term for firearm use.   Section 1170.1, subdivision (a), provided two procedures for the use of enhancements in consecutive term multiple sentencing.   One procedure was for “violent felonies,” while the other procedure was to be utilized for all other felonies.   Under both procedures, subordinate terms were imposed on the basis of one-third of the middle term for each consecutive offense.   However, “violent felonies” could also be enhanced by one-third of the additional terms imposed under sections 12022 (armed with a firearm or use of a deadly or dangerous weapon), 12022.5 (personal use of a firearm), and 12022.7 (the intentional infliction of great bodily injury).   Section 1170.1, subdivision (a), incorporated the definition of “violent felony” from section 667.5, subdivision (c).   Section 667.5, subdivision (c), lists specific felonies and in subdivision (8), includes any other felony in which the defendant inflicted great bodily injury or used a firearm.

In Harvey, the Supreme Court reasoned that if all firearm use in great bodily injury felonies were included within the designation of “violent felony” in section 1170.1, subdivision (a), there would be no reason to refer to the listing of specific crimes in section 667.5, subdivision (c).   The court held that a literal reading of the two sections would render meaningless, and redundant, the language of section 1170.1 referring to the felonies described in section 667.5.   Thus, the court concluded that section 1170.1 permitted enhancement of a subordinate term only if the enhancing conduct (use of a gun, or infliction of great bodily injury) occurred during the commission of a felony specifically listed in section 667.5, subdivision (c).5

Analogizing the court's reasoning in Harvey to the present question, if any felony involving a dangerous or deadly weapon may be enhanced under sections 667, subdivision (a)/1192.7, subdivision (c)(23), the language in section 667, subdivision (d), “[a]s used in this section ‘serious felony’ means a serious felony listed in subdivision (c) in section 1192.7,” is rendered partially meaningless.   Such an interpretation makes redundant the enumerated serious felonies of assault with a deadly weapon or instrument on a peace officer and assault with a deadly weapon by an inmate.

 Further, to construe assault with a deadly weapon to be enhanceable under section 1192.7, subdivision (c)(23), is inconsistent with section 12022, subdivision (b).   Section 12022, subdivision (b), provides for felony sentences to be enhanced one year when a defendant personally uses a deadly or dangerous weapon in the commission of a felony.6  However, by its very terms, it does not apply when a deadly or dangerous weapon is an element of the offense of which the defendant is convicted.   A conviction under section 245, subdivision (a)(1), predicated on use of a dangerous or deadly weapon is thus not enhanceable under section 12022.  (People v. Bradford (1984) 160 Cal.App.3d 532, 543, 26 Cal.Rptr. 899;  People v. Whitehouse (1980) 112 Cal.App.3d 479, 484–485, 169 Cal.Rptr. 199.)

In People v. Bradford, supra, 160 Cal.App.3d 532, 206 Cal.Rptr. 899, the court was not required to decide the question of whether a conviction of assault with a dangerous or deadly weapon was enhanceable under subdivision (c)(23) as a matter of law.   Nevertheless, the court stated its conclusion that it was not.   We agree with the court's reasoning.

The court noted section 12021.1, subdivision (b), was the model for section 1192.7, subdivision (c).   Section 12021.1, subdivision (b)(24), lists as a “violent offense” assault with a deadly weapon or force likely to produce great bodily injury.   Subdivision (b)(24) is one of the few “violent offenses” omitted from the laundry list of serious felonies in subdivision (c) of section 1192.7.   Thus the court in Bradford stated:

“It is an established canon of statutory construction that where statutory language is used in the same or similar context, an omission of crucial language must be given significance.  [Citations.]

“We believe a reasonable conclusion is that a conviction for violation of subdivision (a)(1) of section 245, is not to be given ‘serious felony’ status under sections 667 and 1192.7.”  (People v. Bradford, supra, 160 Cal.App.3d at p. 543, fn. omitted.)

The court further noted that subdivision (c)(11) and (13) of section 1192.7 would be converted into surplusage if subdivision (c)(23) made all assaults with deadly or dangerous weapons serious felonies.  “Unlike the ‘violent offense’ statute, the ‘serious felony’ statutes therefore single out for ‘serious felony’ status certain species of assaults with a deadly weapon, i.e., those described in sections 245, subdivision (b) and 4501.”  (People v. Bradford, supra, 160 Cal.App.3d at pp. 543–544.)   Lastly, the court noted that a conviction under section 245, subdivision (a)(1), in and of itself is not a serious felony because personal use of a deadly or dangerous weapon is not an element of the offense, and that a section 12022, subdivision (b), enhancement is inapplicable to a conviction of assault with a deadly or dangerous weapon.  (Ibid. )

Our reasoning is similar to that employed in People v. Cook, supra, 158 Cal.App.3d 948, 205 Cal.Rptr. 105, in which we held that involuntary manslaughter was not a serious felony within the meaning of section 1192.7, subdivision (c).   The court noted in the opinion that involuntary manslaughter was not an enumerated serious felony, while murder and voluntary manslaughter were enumerated.   The court held that the omission of involuntary manslaughter from the list thus appeared intentional.   In Cook, the People argued that involuntary manslaughter was omitted from the list because it was included within section 1192.7, subdivision (c)(8), “any other felony in which the defendant inflicts great bodily injury on any person, ․” The court, analogizing People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, held that the People's interpretation would make the enumeration of “murder or voluntary manslaughter” unnecessary and mere surplusage.

We conclude that as a matter of law a conviction for assault with a deadly weapon is not a serious felony under section 1192.7, subdivision (c)(23).

 Assault with a deadly weapon, properly charged with appropriate additional allegations which are proved, may support a finding that the conviction was a serious felony.   For example, Penal Code section 1192.7, subdivision (c)(8), refers to “any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice;  ․” A charge of assault with a deadly weapon together with the necessary additional allegations could support a finding, if proved, of a serious felony under that subsection.   We point out, however, as discussed above, the section 12022, subdivision (b) (see fn. 6), enhancement of one year does not apply when a deadly or dangerous weapon is an element of the offense of which the defendant is convicted.  (People v. Bradford, supra, 160 Cal.App.3d 532, 206 Cal.Rptr. 899.)   Whether it is possible to plead and prove assault with a deadly weapon with “personal use” under subdivision (c)(23) for purposes of a serious felony finding, we need not decide.  (See People v. Wolcott, supra, 34 Cal.3d at p. 105, 192 Cal.Rptr. 748, 665 P.2d 520.)

 The information alleged a violation of section 245, subdivision (a)(1), and further alleged appellant committed the offense with the intent to inflict great bodily injury in violation of section 12022.7.7  The information did not allege that appellant committed a “serious felony” or that he personally used a dangerous or deadly weapon.   If, arguendo, the section 12022.7 allegation is construed as putting appellant on sufficient notice that a serious felony with a five-year enhancement was alleged (under § 1192.7, subd. (c)(8)), we find it cannot constitute a sufficient pleading for enhancement pursuant to section 1192.7, subdivision (c)(23).

 The term “personally used” in the phrase in section 1192.7, subdivision (c)(23), “personally used a dangerous or deadly weapon,” is to be interpreted consistently with its use in sections 12022, subdivision (b), and 12022.5.   These sections, enhancing felony sentences when a defendant personally uses a dangerous or deadly weapon or a firearm during the commission of the act, require that the defendant use the weapon, and not merely be armed.  (Compare § 12022, subd. (a), enhancing sentences upon conviction of a felony when the defendant is armed during the commission.)   The term “uses” requires more than being armed and having the bare potential to harm or threaten to harm.  (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024;  People v. Alotis (1964) 60 Cal.2d 698, 705–706, 36 Cal.Rptr. 443, 388 P.2d 675;  People v. Southack (1952) 39 Cal.2d 578, 591–592, 248 P.2d 12.)

 When enhancing violent felonies under section 667.5, subdivision (a), use of a firearm or weapon must be charged and proved as part of the prior conviction.  (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1025, 184 Cal.Rptr. 483.)

 Section 969c, 969d expressly require that whenever the prosecution wishes to attempt to enhance the sentence of a present conviction based on a defendant's use of a weapon as defined by sections 12022 and 12022.5, it must be charged in the accusatory pleading that the defendant used the weapon.   Further, the nature of the weapon must be set forth.   Thus, when attempting to enhance “other” felonies where a defendant used a deadly or dangerous weapon under sections 667/1192.7, subdivision (c), the pleadings must also allege the use and the nature of the weapon.   This would seem especially true when attempting to enhance for personal use of a deadly or dangerous weapon under subdivision (c)(23) because the defendant may be convicted of assault with a deadly weapon by mere aiding and abetting, without having personally used the weapon.  (See People v. Chagolla (1983) 144 Cal.App.3d 422, 193 Cal.Rptr. 711;  People v. Herrera (1970) 6 Cal.App.3d 846, 86 Cal.Rptr. 165.)

 Here, there was no allegation or finding that appellant “personally used” a deadly or dangerous weapon.   The trial court may not go behind adjudicated elements or appellant's admissions to prove a deadly or dangerous weapon was used.  (People v. Crowson, (1983), 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389;  In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381;  People v. Lee (1983) 150 Cal.App.3d 455, 197 Cal.Rptr. 766.)

IV *

V

The five-year enhancement (§§ 667, subd. (a)/1192.7, subd. (c)) is stricken.   The judgment is otherwise affirmed.   The trial court is directed to prepare a corrected abstract of judgment and forward a certified copy to the proper authorities.

FOOTNOTES

2.   All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote 1, ante.

3.   Penal Code section 667 provides in pertinent part:  “(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.“․“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of section 1192.7.”

4.   Penal Code section 1192.7 provides in pertinent part:  “(c) As used in this section ‘serious felony’ means any of the following:  [¶] (1) Murder or voluntary manslaughter;  (2) mayhem;  (3) rape;  (4) sodomy by force, violence, duress, menace, or threat of great bodily harm;  (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm;  (6) lewd acts on a child under the age of 14 years;  (7) any felony punishable by death or imprisonment in the state prison for life;  (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm;  (9) attempted murder;  (10) assault with intent to commit rape or robbery;  (11) assault with a deadly weapon or instrument on a peace officer;  (12) assault by a life prisoner on a noninmate;  (13) assault with a deadly weapon by an inmate;  (14) arson;  (15) exploding a destructive device or any explosive with intent to injure;  (16) exploding a destructive device or any explosive causing great bodily injury;  (17) exploding a destructive device or any explosive with intent to murder;  (18) burglary of a residence;  (19) robbery;  (20) kidnapping;  (21) taking of a hostage by an inmate of a state prison;  (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;  (23) any felony in which the defendant personally used a dangerous or deadly weapon;  (24) selling, furnishing, administering or providing heroin, cocaine or phencyclidine (PCP) to a minor;  (25) any attempt to commit a crime listed in this subdivision other than an assault.”

5.   Subsequent to the decision in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, the Legislature amended section 1170.1, subdivision (a), to provide for enhancement of the subordinate term for every felony which is a “violent felony” as defined by section 667.5, subdivision (c), including those offenses described in subdivision (8).  (See People v. Wolcott (1983) 34 Cal.3d 92, 104, fn. 4, 192 Cal.Rptr. 748, 665 P.2d 520.)

6.   Penal Code section 12022 provides in pertinent part: “(b) Any person who personally uses a deadly or dangerous weapon 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 use of a deadly or dangerous weapon is an element of the offense of which he was convicted.”

7.   The jury found defendant guilty of assault with a deadly weapon, but found not true the further allegation of infliction of great bodily injury.

FOOTNOTE.   See Footnote 1, ante.

PAULINE DAVIS HANSON, Acting Presiding Justice.

WOOLPERT and VANDE WALLE,** JJ., concur.