PEOPLE v. MIRAMON (1988)

III

 In this published portion of the opinion ² we hold that the enhancement for a “serious felony” committed in another jurisdiction (Penal Code § 667) ^* may not be imposed under the “any felony” provision of section 1192.7, subdivision (c)(23), where the out-of-state felony does not contain all the elements of a California felony.

The defendant was convicted of robbery (§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)), and it was found that he personally used a deadly weapon during the commission of the robbery.  (§ 12022, subd. (b).)  He was sentenced to 17 years in state prison.   The issue we consider is whether the court erred in imposing a five-year enhancement of defendant's prison term by classifying a 1971 federal bank robbery conviction as a “felony” under the provisions of sections 667 and 1192.7, subdivision (c)(23).

Section 667 provides that “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 ․ a five-year enhancement for each such prior conviction on charges brought and tried separately.”  (Emphasis added.)   Section 1192.7, subdivision (c), defines “serious felony” by reference to 25 categories of offenses.

It is conceded that the federal offense does not qualify as a “robbery” under subdivision (c)(19) of section 1192.7 because it does not include “all the elements” of robbery under California law.  (See People v. Ellis (1987) 195 Cal.App.3d 334, 240 Cal.Rptr. 708;  People v. Leever (1985) 173 Cal.App.3d 853, 870, 219 Cal.Rptr. 581.)³  This concession correctly assumes that the offenses referred to in section 1192.7 are offenses defined by California law.   Nonetheless, it is argued that the federal offense is a “serious felony” under the provisions of subdivision (c)(23) (“any felony in which the defendant personally used a dangerous or deadly weapon”) because the federal bank robbery is an “any felony”, as defined by federal law, and defendant personally used such a weapon during its commission.  (Emphasis added.)   The argument ignores the point, implicit in the concession, that section 1192.7 applies only to California offenses and accordingly “any felony”, as used in subdivision (c)(23), refers to “any [California] felony”.   Section 1192.7, subdivision (c) is the law by which section 667 measures whether an out-of-state offense qualifies for enhanced punishment.

Section 667 explicitly distinguishes between California felonies and out-of-state offenses.   It provides that a five-year enhancement may be imposed only if the defendant “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․”  (Emphasis added.)

It is manifest that section 667 applies the same test of “serious felony” to offenses committed both within and without the state, measured by the California offenses specified in section 1192.7, subdivision (c).   An offense committed in another jurisdiction qualifies as a serious felony only if it is a felony “in this state”;  accordingly it must be measured against “all of the elements” of a felony defined by California law.   That “any felony” is an “element[ ] of [a] serious felony”, as defined by subdivision (c)(23), does not entail the conclusion that the “elements” of the out-of-state offense need not include “all the elements” of an in-state felony offense.   As we have said, “any felony” refers to “any [California] felony.”

Section 667 fulfills the policy set forth in section 668.  “Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, such person could have been punished under the laws of this state by imprisonment in a state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if such prior conviction had taken place in a court of this state.”  (Emphasis added.)   To conclude otherwise would sanction the imposition of a five-year prison term for conviction of an out-of-state offense that could not be so punished if committed in California.  Section 667 does not sanction such unequal treatment.

 As explained above, the defendant's federal bank robbery offense does not contain “all the elements” of robbery under California law.   Neither in the trial nor here have the People contended that the federal offense satisfies the elements of any other California felony and we have no occasion to make such an inquiry.   Accordingly, defendant's federal conviction cannot serve as a “felony” under the “any felony” provisions of subdivision (c)(23) of section 1192.7.

DISPOSITION

The five-year enhancement for the prior federal bank robbery conviction is stricken.   The trial court is directed to prepare a new abstract of judgment and to send a copy to the Department of Corrections.   In all other respects, the judgment is affirmed.

FOOTNOTES

2.   Pursuant to California Rules of Court, rule 976.1, this opinion is certified for partial publication with directions to publish Part III of the Discussion and Disposition only.

FOOTNOTE.   Editor's Note:  All further references to sections are to the Penal Code unless otherwise indicated.

3.   In People v. Ellis, supra, 195 Cal.App.3d 334, 240 Cal.Rptr. 708, we followed People v. Leever, supra, 173 Cal.App.3d 853, 219 Cal.Rptr. 581 in holding that a federal bank robbery, committed within the jurisdiction of the Ninth Circuit Court of Appeals, does not include a specific intent to permanently deprive the victim of the property taken, an element of robbery under California law.We note that the federal bank robbery conviction at issue here was made the ground of a one-year enhancement, pursuant to section 667.5 (enhancement for prior prison term), of the prison term imposed on defendant in a prior case in which he was convicted of burglary and robbery.  (See People v. Miramon (1983) 140 Cal.App.3d 118, 189 Cal.Rptr. 432.)   The court there found that a federal bank robbery offense includes all of the elements of the California offense of robbery.We are not bound by that determination.   This court has rejected the reasoning of the Miramon holding.  (See People v. Ellis, supra, 195 Cal.App.3d at p. 340, fn. 3, 240 Cal.Rptr. 708.)   The doctrine of law of the case is not applicable because this is not the same case.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 738, p. 707.)   The law of the case is also not applicable where a new determination is necessary due to an intervening change, as here, in the applicable law.  (See Rest.2d Judgments, § 28, subd. (2);  7 Witkin, Cal. Procedure (3d ed. 1985), Judgment, § 274, p. 714.)   Nor are we precluded from reconsidering the issue by the doctrine of collateral estoppel.   That rule is also inapplicable where a new determination is necessary due to an intervening change in the applicable law.  (See Rest.2d Judgments, § 28, subd. (2);  7 Witkin, Cal. Procedure, supra, Judgment, § 274, p. 714.)

BLEASE, Associate Justice.

PUGLIA, P.J., and SIMS, J., concur.