PEOPLE v. FRANKLIN

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Ralph Edward FRANKLIN, et al., Defendants and Appellants.

3 Crim. 13952.

Decided: January 16, 1986

Elaine Forrester, for defendants and appellants. John K. Van De Kamp, Atty. Gen., Eddie T. Keller, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION ON REHEARING

 In the published portion of this opinion we consider whether a serious felony enhancement for “any felony in which the defendant uses a firearm” requires personal use of the weapon.  (Pen.Code, § 1192.7, subd. (c)(8).) 1  We hold that it does.   In the unpublished part, we consider and reject defendants' remaining contentions.

At a joint trial, a jury found both defendants guilty of robbery.  (§ 211) Defendant Willie Mack Wilson was sentenced to state prison for the middle term of three years plus a five-year enhancement for a prior serious felony conviction.  (§§ 667;  1192.7, subd. (c).)  Defendant Billie Johnson (whose true name is Ralph Edward Franklin) was sentenced to state prison for the upper term of five years plus a five-year enhancement for a prior serious felony conviction.   They both appeal and challenge the sufficiency and admissibility of evidence, the propriety of a joint trial, and the validity of one of the enhancements.   We shall vacate the challenged enhancement and affirm the judgments in all other respects.

FACTS

On May 3, 1984, around 11 p.m., a man later identified as defendant Johnson entered a Circle K store in the City of Sacramento with a bag over his hand.   He demanded money from the clerks, threatening to kill them if they did not comply.   One of the clerks, David Maldonado, opened the register.   Defendant Johnson grabbed the cash in the register from over the counter.   Maldonado estimated that approximately $100 was taken.

After defendant Johnson walked out of the store, Mr. Maldonado waited until he was out of sight before following to see if it were possible to get a license plate number.   For that purpose, Mr. Maldonado got into his car and headed south on Northgate Boulevard.   He saw defendant Johnson enter the passenger side of a yellow Vega station wagon parked at the curb on Northgate.   The car began to head south.   Mr. Maldonado pulled up parallel to the Vega on its left and recognized the driver as defendant Wilson, a past customer of Circle K.   Aware that he had been observed, defendant Wilson accelerated, pulled in front of Mr. Maldonado, swerved back into the right lane, and set off down Northgate at 60 to 70 miles per hour.   Mr. Maldonado trailed the defendants' car by approximately 50 feet.

Approaching the ramp for N. 12th Street (Highway 160 southbound), the defendants' car swerved around a slower car to cut ahead on the ramp.   The car careened out of control and crashed into a guard rail.   Mr. Maldonado, still in pursuit, observed the defendants flee the wreck on foot south toward the N. 16th Street bridge over the American River (Highway 160 northbound).   Janice Daniels, who was headed north on Northgate and also witnessed the accident, heard the sound of two gunshots in rapid succession either just before or after the crash.   She, too, saw the defendants head south for the N. 16th Street bridge.

Charles Davis stopped his truck at a Chevron station on N. 16th Street at a time shortly after the accident had occurred.   Two men dashed in front of his truck and headed for the station's building.   One of the men was limping.   The taller man (whom Mr. Davis identified at trial as defendant Wilson) went into the office, ducking whenever a car passed.   The shorter man (identified as defendant Johnson at trial by Mr. Davis) headed for the restroom at the rear of the station.   Defendant Wilson left the office to make a call from an outside phone booth, again ducking whenever a car passed.

Officer Winford, who had received a report of the robbery and a description of one of the robbers, saw defendant Wilson on the phone.   Winford pulled into the station, thinking Wilson resembled one of the suspects.   When defendant Wilson saw the police, he dropped the phone and returned to the office.   Winford followed, informed defendant Wilson he was being detained, and placed him in the patrol car.   Mr. Davis told Officer Winford that a second suspect was at the rear of the building.   Winford walked around, found the limping defendant Johnson, and detained him as well.

A second officer took defendant Johnson to the police station, where an inventory search revealed $109 in Johnson's shoe.   Winford brought defendant Wilson to the station.   En route, a description of the robbery vehicle was broadcast on Winford's police radio;  following the description, defendant Wilson claimed that his car had been stolen.   At the police station, an inventory search of Wilson revealed a pink washcloth and a length of rope.

When it was discovered that defendant Johnson had a puncture wound in his foot that had caused it to swell, Officer Winford returned to the station to take Johnson to the hospital.   The treating physician testified that Johnson claimed the injury was caused by stepping on a nail.   The doctor determined that the wound was caused by a bullet fragment, which he removed before treating the wound.   As the probation officer's report later recounted, no shots were fired by either the store clerk or the responding officers.   Thus the inference to be drawn is that defendant Wilson was accidentally shot by himself or by his confederate.   Neither defendant testified at trial.

DISCUSSION

I–III 2

IV

The information alleged that defendant Wilson had previously been convicted in Sacramento County on May 10, 1974, of “serious felony offenses, to wit, a violation of Sections 245 and 12022.5 of the Penal Code, within the meaning of Penal Code Sections 667 and 1192.7(c).”   Outside of the presence of the jury, defendant Wilson admitted the prior conviction as charged and acknowledged that this admission would add an additional five years to his prison sentence if he were convicted of the pending charge of robbery.

Section 667, subdivision (a) and section 1192.7, subdivision (c), set out a laundry list of “serious felonies” for which a five-year enhancement may be imposed when a defendant who has previously been convicted of a serious felony commits another one.3  That list includes the present offense of robbery (subd. (c)(19)) and thus no question is raised on appeal about the present conviction.   The issue tendered here is whether defendant had also been previously convicted of another serious felony.   Although the information did not specify which serious felony subsection the defendant's 1974 conviction fell under, the only possible ones were “any felony in which the defendant uses a firearm” (subd. (c)(8)) and “[a]ny felony in which the defendant personally used a dangerous or deadly weapon.”  (Subd. (c)(23).) 4

Relying on People v. Bradford (1984) 160 Cal.App.3d 532, 206 Cal.Rptr. 899, defendant contends that, notwithstanding his admission, his prior conviction of assault with deadly weapon with a firearm use enhancement does not constitute a serious felony.   For slightly different reasons, we are compelled to agree.

In Bradford, the jury convicted the defendant of the crime of murder, a serious felony.  (Subd. (c)(1).)   It also found that he had previously been convicted in 1976 of a serious felony, namely a felonious assault in which he had “personally used a dangerous or deadly weapon.”  (Subd. (c)(23).)   The basis for that finding was not the record of the 1976 conviction but was rather the testimony of the victim of the assault.   We concluded that “the statute contemplates that ‘serious felonies' are statutorily defined crimes or enhancements with elements that are properly pleaded.”  (Id., at p. 537, 206 Cal.Rptr. 899.)   We held that in order for a prior conviction to constitute a serious felony under subdivision (c)(23), the record of the prior conviction must show on its face that the offense had also been enhanced by a finding that defendant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b).5  (Id., at pp. 542–44, 206 Cal.Rptr. 899.)   As Bradford's aggravated assault had been committed before 1977—when the enhancing statute was amended to require personal use of a deadly or dangerous weapon—there was no possible way the conviction, standing alone, could demonstrate such personal use even if a use allegation under section 12022 had been admitted.  (Id., at pp. 535, 542–43, 206 Cal.Rptr. 899.)   Consequently we concluded that the enhancement was improperly applied.   We therefore held that “with respect to prior convictions arising out of crimes committed before the effective date of Proposition 8, subdivision (c)(23) of section 1192.7 must be interpreted to mean a prior felony in which an enhancement for use of a deadly or dangerous weapon, pursuant to section 12022, subdivision (b), was found or admitted to be true.”  (Id., at p. 535, 206 Cal.Rptr. 899.)

Defendant Wilson, maladroitly paraphrasing the summary by the Reporter of Decisions for Bradford, claims his 1974 conviction for assault with a deadly weapon under section 245 with the use of a fireman under section 12022.5 6 cannot constitute a prior serious felony because it was committed before the 1977 amendment of section 12022, subdivision (b), and thus cannot establish personal use of a deadly or dangerous weapon for the purpose of an enhancement under section 667 and section 1192.7, subdivision (c)(23).   The People inexplicably concede this point and ask that we reconsider Bradford in light of more recent authority.

Our conclusion in Bradford that serious felonies were limited to statutorily defined crimes or enhancements was later rejected by the Supreme Court in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.   There the high court held that subdivision (c), paragraphs (18) [burglary of a residence] and (24) [selling, furnishing, administering or providing heroin, cocaine or phencyclidine (PCP) to a minor] refer “not to specific criminal offenses, but to the criminal conduct described therein, and [are] applicable whenever the prosecution pleads and proves that conduct.”   (Id., at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   Ignoring the question of whether Bradford retains any of its youthful vigor,7 we conclude that this case is governed by other authority.   As we shall explain, defendant's admission that he had been convicted in 1974 of assault with a deadly weapon with a firearm use enhancement under section 12022.5 did not necessarily establish that he personally used the firearm.   By the same token, his admission also did not establish that he had previously “personally used a dangerous or deadly weapon” in the commission of the 1974 aggravated assault under subdivision (c)(23).   Without an admission of personal use, a serious felony under subdivision (c)(23) has not been established.   But that does not end the matter.  Bradford was only concerned with serious felonies arising out of the personal use of a dangerous or deadly weapon under subdivision (c)(23);  in contrast, this case also potentially involves a serious felony arising out of the use of a firearm during a felony under subdivision (c)(8).   We turn then to an examination of that subdivision.

In 1974, when defendant Wilson admitted the use of a firearm in the commission of the assault, section 12022.5 imposed a 5 year enhancement on “[a]ny person who uses a firearm in the ․ commission of ․ assault with a deadly weapon [and other designated crimes]․”  (Stats.1969, ch. 954, § 1, p. 1900.)   In People v. Walker (1976) 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306, the high court construed section 12022.5 to mean that a defendant must personally use a firearm in the commission of the specified felony in order to be subject to the increased penalty mandated by that section.   (Id., at pp. 235–236, 133 Cal.Rptr. 520, 555 P.2d 306.)   The court explained that “[g]enerally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.   Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate.   But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplices's personal conduct, as those statutes which provide for such increased punishment ‘ “do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.” ’   Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime.”  (Id., at pp. 241–242, 133 Cal.Rptr. 520, 555 P.2d 306, citations omitted.)   Since section 12022.5 did not expressly state that it applied to anyone other than those who themselves used the firearm, the court noted that it “must otherwise determine the legislative intent.”  (Id., at p. 240, 133 Cal.Rptr. 520, 555 P.2d 306.)   The court was aided in that inquiry by the legislative history of the section and other related enhancement statutes together with the response of the Legislature to its earlier decisions construing those statutes.   The court could not discern in that legislative history any suggestion that section 12022.5 was intended to apply to a mere aider and abettor who did not personally use the firearm.   Since section 12022.5 did not define a crime and because there was no legislative direction concerning derivative liability, the statute was read to impose only personal liability on the actual user of the firearm.   The court further noted that its conclusion was “also compelled by the established policy ‘to construe a penal statute as favorably to the defendant as its language and the circumstances of its application reasonably permit;  ․ the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.’ ”   (Id., at p. 242, 133 Cal.Rptr. 520, 555 P.2d 306;  citation omitted.)

Until Walker was decided, it was possible for a defendant to be subjected to the enhancement for “using” a firearm under section 12022.5 where he merely aided and abetted the person actually wielding the firearm.  (See People v. Bush (1975) 50 Cal.App.3d 168, 172, 123 Cal.Rptr. 576 [disapproved in Walker, 18 Cal.3d at p. 240, 133 Cal.Rptr. 520, 555 P.2d 306].)  Thus, defendant Wilson's 1974 conviction of aggravated assault with the use of a firearm merely established that one of the perpetrators, but not necessarily Wilson, personally used the firearm in the commission of the offense.   His admission conceded only that.

As we have noted, subdivision (c)(8) defines a serious felony as “any felony in which the defendant uses a firearm.”   Since the Walker court had construed similar language to impose only personal liability on the actor, and because this subsection is silent about derivative liability, the question is whether there is any other legislative history which suggests that derivative liability was intended by that subsection.   The history of related enhancement statutes, recounted in People v. Cole (1982) 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182, indicates that the term “uses” connotes a personal and not derivative liability.   In Cole, the high court considered whether section 12022.7 imposed derivative liability.8  It explained that the “courts and the Legislature have been confronted with two recurrent problems regarding the scope of the enhancement statutes:  the first is the definition of the type of crimes to which the statute applies;  the other ․ is the definition of the category of persons liable for the increased penalty.”  (Id., at p. 574, 183 Cal.Rptr. 350, 645 P.2d 1182.)   Addressing the category of persons liable for the enhancement, the court noted that “[t]he legislative response to Walker buttresses our interpretation of section 12022.7, rejecting the proposition that enhancement liability may be based on prohibited conduct performed by one other than the charged defendant.   The 1977 amendment to section 12022.5 endorsed the judicial interpretation enunciated by Walker, so that the statute now explicitly requires that the defendant personally use a firearm before the provision is applicable.   The 1977 amendments to sections 12022, 12022.5, and 12022.7 clearly differentiate between the class of persons who commit felonies armed with a firearm and those who use firearms, other dangerous weapons, or inflict great bodily injury.   The language of section 12022, subdivision (a), ‘․ whether or not such person is personally armed with a firearm,’ contrasted with section 12022, subdivision (b), ‘any person who personally uses a deadly or dangerous weapon․’ demonstrates a legislative intent to draw the line of distinction at the actor who himself commits the prohibited conduct.   Significantly, the 1977 amendments simultaneously added the ‘personally’ requirement to sections 12022, subdivision (b), 12022.5, and 12022.7 (Stats.1977, ch. 165, §§ 91, 92, 94, eff. June 29, 1977, operative July 1, 1977;  see also Review of Selected 1977 California Legislation (1978) 9 Pacific L.J. 281, 470–472.)   In section 12022, subdivision (a) the Legislature has rejected limiting the class to those who are actually armed with a firearm while endorsing the restriction in sections 12022, subdivision (b), 12022.5 and 12022.7 as to those who themselves use deadly or dangerous weapons or inflict great bodily injury.   In these amendments, we discern a legislative intent to uniformly limit the class of persons to whom the ‘use’ and ‘great bodily injury’ enhancements are applicable to those who themselves commit the prohibited conduct.”  (31 Cal.3d at p. 576, 183 Cal.Rptr. 350, 645 P.2d 1182;  emphasis in original.)   Consistent with that discernment of legislative intent, the Cole court held that section 12022.7 was “intended to impose an additional penalty for causing great bodily injury only on those principals who perform the act that directly inflicts the injury, and that one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty․”  (Id., at p. 571, 183 Cal.Rptr. 350, 645 P.2d 1182.)

In People v. Reed (1982) 135 Cal.App.3d 149, 185 Cal.Rptr. 169, we also had occasion to address one of these recurrent derivative liability problems.   The question there was whether section 12022.3, subdivision (b), imposed derivative liability upon an aider and abettor.9  Following Walker, we held that the enhancement did not impose derivative liability and hence only applied to one who is personally armed with the firearm or deadly weapon.   We reasoned:  “Since section 12022.3, subdivision (b), unlike other enhancement provisions, does not include such express legislative direction, it is reasonably susceptible to a construction which permits additional punishment only when the defendant is personally armed with a firearm or other deadly weapon.   We believe this is the proper construction in view of the ambiguity of the statute, the absence of any legislative direction that it should impose liability derivatively, and the well-established policy that a penal statute is to be construed ‘as favorably to the defendant as its language and the circumstances of its application reasonably permit,’ entitling defendant ‘to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used․’ ”  (Id., at p. 153, 185 Cal.Rptr. 169.)

 The lesson to be learned from these authorities is that derivative liability for enhancements cannot be imposed when the statute is silent and its legislative history does not reveal any other intent.   Instead, derivative liability can only be imposed when the Legislature has expressed its intent that the enhanced penalty is to be applied to persons who do not themselves commit the proscribed act.   That lesson has not always been heeded.   In People v. Le (1984) 154 Cal.App.3d 1, 200 Cal.Rptr. 839, the Court of Appeal for the Fourth District disagreed with our holding in Reed and concluded instead that section 12022.3, subdivision (b), imposed derivative liability on confederates who were not personally armed with the prohibited weapon.   In reaching that result, the Le court employed a standard directly opposite to that required by Walker:  “If the Legislature had intended to restrict imposition of this enhancement to persons who are personally armed, it would have inserted the word ‘personally’ as it did in other enhancement provisions.”  (Id., at p. 11, 200 Cal.Rptr. 839.) 10  But, as Walker made clear, the question is not whether the Legislature intended to restrict imposition of an enhancement on accomplices;  it is rather whether it intended to impose it.   In short, when the statute is silent and there is no other legislative direction, no derivative liability arises.

Since defendant Wilson did not admit that he personally used a firearm in the aggravated assault, the question to be resolved is whether subdivision (c)(8) was intended to apply derivatively to a confederate who did not personally use the firearm.   That question, as we have seen, turns on whether the Legislature has given some direction that it does.   We have recounted the history of related enhancements and now turn to the historical derivation of subdivision (c)(8).   As the Supreme Court explained in People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, “Proposition 8, however, did not confine its list of ‘serious felonies' to specific, discrete offenses.   Its list of serious felonies enumerated in section 1192.7 appears to be based largely upon section 12021.1, subdivision (b).   That provision, enacted in April of 1982 to require a six-month county jail term as a condition of probation when a defendant previously convicted of a violent felony is found guilty of owning or possessing a concealable firearm, included a list of 26 ‘violent offenses.’ ”  (Id., at p. 831, 210 Cal.Rptr. 623, 694 P.2d 736.)   Thus both the Legislature and the People used identical language when proscribing the use of weapons in “violent” and “serious” felonies:  “[A]ny felony in which the defendant uses a firearm” (§§ 12021.1, subd. (b)(8);  1192.7, subd. (c)(8)), and “[a]ny felony in which the defendant personally used a dangerous or deadly weapon.”  (§§ 12021.1, subd. (b)(22);  1192.7, subd. (c)(23).)

Under both Cole and Walker, the lawmakers' employment of the unadorned word “uses” would be interpreted as expressing a legislative intent to limit the enhancement to those who themselves personally commit the prohibited conduct.   Indeed, “uses a firearm” was the very language construed in Walker to mean that no derivative liability was intended.11  As the high court recently explained in construing another section enacted by Proposition 8, this one dealing with the trial court's power to strike an enhancement, its earlier decision in People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, “sent an unmistakable signal to drafters of sentencing provisions of the need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended.”   (People v. Fritz (1985) 40 Cal.3d 227, 230, 219 Cal.Rptr. 460, 707 P.2d 833.)   The court's decisions in Walker and Cole similarly sent an unmistakable signal to the drafters of section 12021.1 and Proposition 8 that the mere employment of the term “uses a firearm” in an enhancement statute is not sufficient to impose derivative liability.

 It is true that the drafters of both provisions used the phrase “personally uses” with respect to dangerous and deadly weapons and did not similarly restrict the use of firearms.   But, as we have been at pains to point out, the issue is not one of restriction but of affirmative imposition of derivative liability.   In any event, that inconsistent usage, at best, merely created an ambiguity and that ambiguity must be resolved in defendant's favor.  (People v. Walker, supra, 18 Cal.3d at p. 242, 133 Cal.Rptr. 520, 555 P.2d 306.)   We hold, therefore, that the serious felony enhancement for “any felony in which the defendant uses a firearm” under paragraph (8) of section 1192.7, subdivision (c), requires that the charged defendant personally use the weapon and hence does not apply when only a confederate uses the gun.12  Consequently, it was necessary for the People to plead and prove defendant Wilson personally used firearm in the commission of the 1974 offense.   Failing that, the enhancement cannot stand.

 Defendant Wilson, however, did not put the prosecution to its proof.   Instead, he admitted the allegation that he had previously been convicted of a serious felony.   This case then turns on the validity of that admission.   In People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the high court held that “the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime.”  (Id., at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)   Since personal use of a firearm was not an element of either assault with a deadly weapon (because the weapon need not be a firearm) or of the firearm enhancement in 1974, the prosecution could not go behind the record to show that defendant personally used the gun.   Yet that does not prevent a defendant from admitting an enhancement which the prosecution is unable to prove.  (Id., at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736.)   Paraphrasing the Jackson court, there is no rule which bars the defendant from admitting that he personally used a firearm in the commission of the aggravated assault, even if the prosecution is unable to prove the allegation.  (Ibid.)  Thus, “[t]heJackson court ․ held that defendant's admission of a fact necessary for the imposition of a particular enhancement under section 1192.7 is binding upon defendant even though the admitted fact was not an essential element of the prior conviction for which enhancement is sought, provided that the admitted fact (e.g., residential entry) was properly pled as an element of the particular enhancement involved.”  (People v. Arwood, supra, 165 Cal.App.3d at p. 175, 211 Cal.Rptr. 307.)   But here, as we have noted, the critical fact of personal use of the firearm was neither pled nor admitted.   Defendant Wilson only admitted the charge that he had previously been convicted of “serious felony offenses, to wit, a violation of Sections 245 and 12022.5 of the Penal Code, within the meaning of Penal Code Sections 667 and 1192.7(c).”   Thus he never admitted that he had personally used a firearm in the commission of the prior crime.   Had the serious felony enhancement alleged that defendant “personally used a firearm” within the meaning of sections 667 and 1192.7, subdivision (c)(8), then defendant's admission would have been valid and binding.   Absent an express admission of personal use, the serious felony enhancement has not been established and the increased punishment cannot be upheld.  (See Jackson, supra, 37 Cal.3d at pp. 835–836, 210 Cal.Rptr. 623, 694 P.2d 736;  People v. O'Bryan (1985) 37 Cal.3d 841, 845, 210 Cal.Rptr. 450, 694 P.2d 135.)

The judgment of conviction of defendant Billy Johnson, also known as Ralph Edward Franklin, is affirmed.   The five-year enhancement imposed for defendant Willy Wilson's prior conviction is vacated, and the five-year term imposed for the enhancement is stricken.   In all other respects, the judgment of conviction of defendant Willy Wilson is affirmed.   The trial court is directed to prepare a new abstract of judgment in conformity with this opinion and to furnish a certified copy of it to the Department of Corrections.

FOOTNOTES

1.   All undesignated section references are to the Penal Code.

2.   See footnote *, ante.

3.   “Section 667 provides a five-year enhancement for repeat offenders convicted of a serious felony who have been previously convicted of another serious felony.   The term ‘serious felony’ is defined by reference to subdivision (c) of section 1192.7 which lists 25 items.   Both of these statutes were enacted by the Proposition 8 voter, initiative, which became effective on June 9, 1982.”  (People v. Arwood (1985) 165 Cal.App.3d 167, 170, fn. 2, 211 Cal.Rptr. 307, citation omitted.)Section 667 provides in relevant 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.”Section 1192.7, subdivision (c) provides:  “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 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.”All further undesignated references to subdivision (c) and its subparagraphs are to section 1192.7, subdivision (c).

4.   At the time of his conviction in 1974, former section 245, subdivision (a) defined that crime this way:  “Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment.”  (Stats. 1972, ch. 618, § 114, p. 1138.)   Conviction of this version of the crime of aggravated assault does not, by itself, fit the statutory definition of any serious felony set out in subdivision (c).

5.   Section 12022, subdivision (b) provides that “Any person who personally uses a deadly or dangerous weapon in the commission ․ of a felony shall ․ be punished by an additional term of one year ․”

6.   The defendants' brief hopelessly confuses the different statutes to the point of losing track of the fact that defendant Wilson admitted a section 12022.5 allegation, not one for section 12022, subd. (b), and that Bradford involved section 12022, subd. (b), not “§ 12022.5, subd. (b),” a nonexistent subdivision.

7.   Compare People v. Sutton (1985) 163 Cal.App.3d 438, 444–445, 209 Cal.Rptr. 536 (following Bradford) with People v. Arwood, supra, 165 Cal.App.3d at pp. 174–175, 211 Cal.Rptr. 307 (concluding Bradford disapproved sub silentio by People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736).   The question of the propriety of imposing a serious felony enhancement under sections 667 and 1192.7, subdivisions (c)(8) and (c)(23), in the absence of a jury finding that the accused personally used a deadly weapon during the commission of the present offense is pending before the Supreme Court in People v. Equarte (1985) ––– Cal.3d –––, 215 Cal.Rptr. 853, 701 P.2d 1171.

8.   Section 12022.7 provides in relevant part:  “Any person who, with intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, 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 three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.”

9.   Section 12022.3 reads:  “For each violation of Section 261, 264.1, 286, 288, 288a or 289, and in addition to the sentence provided, any person shall receive an enhancement (a) of three years if such person uses a firearm or any other deadly weapon in the commission of such violation or (b) of two years if such person is armed with a firearm or any other deadly weapon.”

10.   The Le court also found our reliance upon the policy that an ambiguous penal statute must be construed favorably to the defendant to be inconsistent with section 4.  (Le, supra, 154 Cal.App.3d at p. 12, fn. 10, 200 Cal.Rptr. 839.)   The rebuttal to that is found in Bowland v. Municipal Court, (1976) 18 Cal.3d 479, 487, 134 Cal.Rptr. 630, 556 P.2d 1081:  “Generally, the provisions of a penal statute ‘are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.’  (Pen.Code, § 4.)   Where the statute is susceptible of two reasonable constructions, however, a defendant is ordinarily entitled to that construction most favorable to him.”  (Id., at p. 487, 134 Cal.Rptr. 630, 556 P.2d 1081;  case citations omitted.)

11.   Moreover, the language of section 12022.5, construed by Walker to require personal use, provided that “any person” who used a firearm was subject to the enhancement.   Subdivision (c)(8), in contrast, employs the phrase “the defendant uses a firearm.”   Thus the inference is even stronger that subdivision (c)(8) requires personal use by the defendant in order to be subjected to the enhancement.

12.   In conformance with People v. Walker, supra, 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306, the Legislature amended section 12022.5 as of July 1, 1977, to state expressly that the enhancement only applies to a person “who personally uses a firearm.”  (Stats. 1977, ch. 165, § 92, p. 678, eff. June 29, 1977, operative July 1, 1977.)  Walker was filed on October 25, 1976, and became final on November 24, 1976.  (Cal. Rules of Court, rule 24(a).)   From that date forward, all findings that the defendant used a firearm under section 12022.5 necessarily entail an adjudication that he personally used the firearm.   Thus proof that a defendant suffered an enhancement under section 12022.5 for a felony committed after November 24, 1976, would also establish that the defendant had committed a serious felony by personally using a firearm within the meaning of subdivision (c)(8).

SPARKS, Associate Justice.

BLEASE, Acting P.J., and GILBERT, J.**, concur.

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