PEOPLE v. PIPER (1985)

Isadore Alexander Piper appeals from a judgment of imprisonment for arson (Pen.Code, § 451, subd. (d)) with two prior serious felony convictions (Pen.Code, § 667).   We hold that shooting at an occupied vehicle is a serious felony under Penal Code sections 667 and 1192.7, and affirm the judgment.

A jury convicted Piper of arson, possession of a flammable substance (Pen.Code, § 453, subd. (a)), and dissuading a witness (Pen.Code, § 136.1, subd. (c)).  The jury also found to be true two allegations of prior serious felony convictions (Pen.Code, § 667), for voluntary manslaughter and shooting at an occupied vehicle (Pen.Code, § 246).   The court sentenced Piper to twelve years' imprisonment, consisting of the middle term of two years for arson plus two five-year enhancements for the prior serious felony convictions.¹

Piper contends the five-year enhancement for shooting at an occupied vehicle must be stricken because that offense is not a serious felony within the meaning of Penal Code section 667.  Section 667 defines serious felony as a felony listed in Penal Code section 1192.7, subdivision (c).   The latter statute lists 25 items, 2 of which include “any felony in which the defendant uses a firearm” (Pen.Code, § 1192.7, subd. (c)(8)) and “any felony in which the defendant personally used a dangerous or deadly weapon” (Pen.Code, § 1192.7, subd. (c)(23)).   The Attorney General argues that subdivisions (c)(8) and (c)(23) include shooting at an occupied vehicle because that offense involves personal use of a firearm.   Piper contends that these subdivisions refer only to statutorily defined crimes or enhancements, in which shooting at an occupied vehicle is not included, rather than simply the factual circumstances of an offense.

Piper relies on a similar conclusion in People v. Bradford (1984) 160 Cal.App.3d 532, 206 Cal.Rptr. 899.   The court in Bradford held that assault with a deadly weapon is not a serious felony under subdivision (c)(23).   The court reasoned as follows:  The list of serious felonies in section 1192.7, subdivision (c), is adopted almost verbatim from Penal Code section 12021.1, subdivision (b) [requiring incarceration where a person previously convicted of one of 26 enumerated felonies is found guilty of owning or possessing a concealable firearm].  Section 12021.1 refers to statutorily defined crimes or enhancements rather than simply the factual circumstances of an offense;  thus section 1192.7 must similarly so refer.   Therefore, subdivision (c)(23) of section 1192.7 must refer to some specific, statutorily defined crime or enhancement.   The language of subdivision (c)(23) “bears an uncanny resemblance” to the former language of Penal Code section 12022, subdivision (b), prescribing an enhancement for personal use of a dangerous or deadly weapon in the commission or attempted commission of a felony.   Therefore, subdivision (c)(23) must refer only to the proof or admission of an enhancement under section 12022, subdivision (b), for personal use of a dangerous or deadly weapon.  (Id., at pp. 536–543, 206 Cal.Rptr. 899.)   Our Supreme Court denied a hearing in Bradford and did not depublish.

However, in a recent decision, People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, our Supreme Court, without mentioning Bradford, implicitly disapproved Bradford's theoretical basis.   The court held that the five-year enhancement under Penal Code section 667 could be imposed for “burglary of a residence” (Pen.Code, § 1192.7, subd. (c)(18)), because, even though there is no such specific crime, the subdivisions of section 1192.7 do not refer only to specific statutory offenses and enhancements, but to the criminal conduct described therein.   The court reasoned that if section 1192.7 were construed otherwise, its provisions referring to acts that are not specific criminal offenses (see Pen.Code, § 1192.7, subds. (c)(18), (c)(24)) would be rendered meaningless.  (37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)

 We are puzzled by the failure of our Supreme Court to mention Bradford in its opinion in Jackson, issued 11 days after the court denied a petition for hearing in Bradford.   We conclude that Bradford has been disapproved sub silentio by Jackson, and that Jackson mandates rejection of Piper's challenge to the imposition of the five-year enhancement for shooting at an occupied vehicle.   The prosecutor pleaded and proved the use of a firearm in the previous offense, and thus proved conduct described in section 1192.7, subdivisions (c)(8) and (c)(23).   The five-year enhancement for this offense was properly imposed.²

 Piper also contends that his twelve-year sentence violated the double-the-base-term rule of Penal Code section 1170.1, subdivision (g).   The opinion in Jackson also disposes of this contention;  the court held that “section 667 was intended to impose an enhancement unlimited by the double base term rule.”  (37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)

The judgment is affirmed.

FOOTNOTES

1.   The court also imposed a stayed middle term of two years for possession of a flammable substance and a twelve-day county jail term for misdemeanor dissuasion of a witness.

2.   We recognize that Jackson undermines our previous holding in People v. Sutton (1985) 163 Cal.App.3d 438, 209 Cal.Rptr. 536, based on the decision in Bradford, that assault with a deadly weapon (a knife) was not a serious felony under Penal Code sections 667 and 1192.7, subdivision (c)(23).

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.