People v. Correa

Filed 6/21/12 (S163273 & S179552, both filed 6/21/12, are companion cases; S163273 is the lead case)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S163273

v. )

) Ct.App. 3 C054365

VICTOR CORREA, )

) Sacramento County

Defendant and Appellant. ) Super. Ct. No. 06F1135

____________________________________)

After police found defendant hiding in a closet with a cache of guns, he was

convicted of seven counts of being a felon in possession of a firearm. (Former

Pen. Code, § 12021, subd. (a)(1).) 1 We initially limited review to the question

whether imposing sentence on more than one of these counts violated section

654‟s prohibition against multiple punishment for the same criminal act. We

requested supplemental briefing on the question whether section 654 applies to

multiple violations of the same criminal statute.

1 Former Penal Code section 12021, subdivision (a), is now section 29800,

subdivision (a), which became effective January 1, 2012. (Stats. 2010, ch. 711,

§ 6.) The Law Revision Commission Comments to section 29800 make clear that

the provision was carried over “without substantive change.” (Nonsubstantive

Reorganization of Deadly Weapon Statutes (June 2009) 38 Cal. Law Revision

Com. Rep. (2009) p. 758.) We will refer to the provision by its former

designation.

Further statutory references are to the Penal Code, unless otherwise

indicated.

1

We hold as follows. By its plain language section 654 does not bar

multiple punishment for multiple violations of the same criminal statute. Contrary

dictum in a footnote to Neal v. State of California (1960) 55 Cal.2d 11, 18,

footnote 1 (Neal), is disapproved. We do not apply this interpretation to defendant

because the law has been unsettled in this area. Even so, defendant‟s sentence did

not violate section 654 because specific statutory authority makes possession of

each weapon a separate offense. (Former § 12001, subd. (k).)2

I. FACTUAL AND PROCEDURAL BACKGROUND3

In response to a report that someone was taking firearms into a house,

Officer Kevin Howland went to the residence of defendant‟s parents. Howland

saw defendant get out of a car and walk into the garage. The car had been

reported stolen. Other people left the house and were detained, but defendant

barricaded himself inside. After firing tear gas into the house, a SWAT team

entered. Defendant had hidden in a closet under some stairs and was stuck.

Officers had to break open the back wall of the closet to extricate him. Seven

rifles and shotguns of varying calibers and gauges were found in the closet with

him. Ammunition fitting the weapons was found in the closet, an upstairs

2 Former section 12001, subdivision (k), is now section 23510. Again, the

Law Revision Commission Comments make clear that the provision was carried

over “without substantive change.” (Nonsubstantive Reorganization of Deadly

Weapon Statutes (June 2009) 38 Cal. Law Revision Com. Rep., supra, at p. 479.)

We will refer to the provision by its former designation.

3 Because of the narrow legal question under review, we have condensed the

factual background in the Court of Appeal‟s opinion. We accept the Court of

Appeal‟s statement of facts unless a party calls the Court of Appeal‟s attention to

any alleged omission or misstatement, in a petition for rehearing. (Cal. Rules of

Court, rule 8.500(c)(2).) Neither party here sought rehearing.

2

bedroom, and the garage. A neighbor testified that she had seen defendant with a

shotgun or rifle, and that she had also seen a handgun in his bedroom.

A jury convicted defendant of seven counts of being a felon in possession

of a firearm4 and one count of receiving a stolen vehicle.5 Defendant waived his

right to a jury trial on allegations of prior convictions. The court found that he had

two felony convictions for forcible sodomy,6 which qualified him for life

sentencing under the three strikes law.7 It sentenced him to eight consecutive

terms of 25 years to life, one for each firearm possession and one for receiving a

stolen vehicle.

The Court of Appeal affirmed the judgment. We affirm the judgment of the

Court of Appeal.

II. DISCUSSION

Section 654, subdivision (a), provides: “An act or omission that is

punishable in different ways by different provisions of law shall be punished under

the provision that provides for the longest potential term of imprisonment, but in

no case shall the act or omission be punished under more than one provision. An

acquittal or conviction and sentence under any one bars a prosecution for the same

act or omission under any other.”

In Neal, supra, 55 Cal.2d 11, the court added a “gloss” to section 654 that

has been a subject of continuing controversy and given rise to much confusion.

Neal threw gasoline into a couple‟s bedroom and ignited it, intending to kill the

4 Former section 12021, subdivision (a)(1). The jury did not convict

defendant of possessing two other guns found elsewhere in the house.

5 Section 496d, subdivision (a).

6 Section 286, subdivision (d).

7 Section 1170.12, subdivision (c)(2)(A)(ii).

3

occupants. The victims were severely burned, but survived. Convicted of arson

and two counts of attempted murder, Neal contended he could not be punished for

the arson. (Neal, at p. 15.)

Even though section 654 refers to an “act or omission,” the Neal court

opined that “[f]ew if any crimes . . . are the result of a single physical act.” (Neal,

supra, 55 Cal.2d at p. 19.) Accordingly, the relevant question is typically whether

a defendant‟s “ „course of conduct . . . comprised a divisible transaction which

could be punished under more than one statute within the meaning of section

654.‟ ” (Ibid., quoting People v. Brown (1958) 49 Cal.2d 577, 591.) To resolve

this question, the Neal court announced the following test: “Whether a course of

criminal conduct is divisible and therefore gives rise to more than one act within

the meaning of section 654 depends on the intent and objective of the actor. If all

of the offenses were incident to one objective, the defendant may be punished for

any one of such offenses but not for more than one.” (Neal, at p. 19.)

In People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), this court criticized

Neal‟s analysis, but declined the Attorney General‟s invitation to reconsider the

Neal “gloss.” “While sympathetic with some of the Attorney General‟s

arguments, we conclude that we may not now overrule Neal, supra, 55 Cal.2d 11,

and its progeny. For three decades, the Legislature has enacted new sentencing

statutes in light of those cases. Although the Legislature has not expressly ratified

the Neal rule, it has impliedly accepted it. In some respects, the sentencing

structure we have today would be different but for the Neal line of cases. To

overrule them now would result in a sentencing scheme intended by no one.

Principles of stare decisis compel us to adhere to the Neal test. Any changes must

be made by the Legislature, not this court.” (Latimer, at pp. 1205-1206.)

4

The court stressed, however, that “nothing we say in this opinion is

intended to cast doubt on any of the later judicial limitations of the Neal rule.”

(Latimer, supra, 5 Cal.4th at p. 1216.)

In order to parse out the applicable precedent and to identify the flaw in the

Neal footnote, it is important to distinguish among three related but distinct

concepts: multiple prosecution, multiple conviction, and multiple punishment.

Section 654, subdivision (a), addresses multiple punishment and multiple

prosecution. The multiple prosecution bar, set out in the last sentence of

subdivision (a), is a “ „procedural safeguard against harassment and is not

necessarily related to the punishment to be imposed . . . .‟ ” (People v. Britt

(2004) 32 Cal.4th 944, 950 (Britt), quoting Neal, supra, 55 Cal.2d 11, 21.) This

case involves only the multiple punishment aspect of section 654.

It is also important to recognize that section 654 concerns only multiple

punishment, not multiple convictions. “It is well settled that section 654 protects

against multiple punishment, not multiple conviction.[8] (People v. McFarland

(1962) 58 Cal.2d 748, 762.)” (People v. Harrison (1989) 48 Cal.3d 321, 335

(Harrison).) As we explained in People v. Reed (2006) 38 Cal.4th 1224, 1226-

1227, “In general, a person may be convicted of, although not punished for, more

than one crime arising out of the same act or course of conduct. „In California, a

single act or course of conduct by a defendant can lead to convictions “of any

number of the offenses charged.” (§ 954, italics added; People v. Ortega (1998)

19 Cal.4th 686, 692.)‟ (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)

8 As we explain in footnote 9, post, at the time that Neal, supra, 55 Cal.2d

11, was decided, courts that found section 654 applicable generally set aside the

conviction, and not merely the punishment. (See People v. McFarland (1962) 58

Cal.2d 748, 763 (McFarland).)

5

Section 954 generally permits multiple conviction. Section 654 is its counterpart

concerning punishment. It prohibits multiple punishment for the same „act or

omission.‟ When section 954 permits multiple conviction, but section 654

prohibits multiple punishment, the trial court must stay execution of sentence on

the convictions for which multiple punishment is prohibited. (People v. Ortega,

supra, at p. 692; People v. Pearson (1986) 42 Cal.3d 351, 359–360.) . . . [¶] A

judicially created exception to the general rule permitting multiple conviction

„prohibits multiple convictions based on necessarily included offenses.‟ (People v.

Montoya, supra, 33 Cal.4th at p. 1034.) „[I]f a crime cannot be committed without

also necessarily committing a lesser offense, the latter is a lesser included offense

within the former.‟ (People v. Lopez (1998) 19 Cal.4th 282, 288.)”

This case involves multiple violations of the same statute, while the express

language of section 654 applies to an act that is punishable in different ways by

different provisions of law. That language notwithstanding, in the Neal footnote

the majority remarked: “Although section 654 does not expressly preclude double

punishment when an act gives rise to more than one violation of the same Penal

Code section or to multiple violations of the criminal provisions of other codes, it

is settled that the basic principle it enunciates precludes double punishment in

such cases also. (People v. Brown, 49 Cal.2d 577, 591; see People v. Roberts, 40

Cal.2d 483, 491; People v. Clemett, 208 Cal. 142, 144; People v. Nor Woods, 37

Cal.2d 584, 586.)” (Neal, supra, 55 Cal.2d at p. 18, fn. 1, italics added.)

We asked the parties to file supplemental briefs addressing the following

questions regarding this dictum.

(1) Does the authority cited in this footnote support the italicized

language?

6

(2) In light of the language and purpose of section 654, is it reasonable to

apply it to bar multiple punishment for multiple violations of the same provision

of law?

(3) Should this court reconsider footnote 1 from Neal, supra, 55 Cal.2d at

page 18, and instead conclude that Penal Code section 654 does not govern

multiple punishment for violations of the same provision of law?

In his supplemental letter brief, defendant raised two related issues. As

explained below, although the Neal footnote was dictum, subsequent decisions of

the Court of Appeal have applied section 654 to multiple punishment for

violations of the same provision of law. The question arises whether stare decisis

and legislative acceptance compel us to continue to follow the Neal footnote, just

as they required us to follow the Neal gloss in Latimer, supra, 5 Cal.4th 1203.

Further, may a contrary rule be applied to defendant without violating the due

process and ex post facto clauses of the United States Constitution?

A. Reconsideration of the Neal Footnote

(1)

We conclude that, in addition to being dictum, the Neal footnote is an

incorrect statement of law, unsupported by the authority it cites. The cases relied

upon do not stand for the proposition that the “basic principle” enunciated in

section 654 “preclude[s] double punishment when an act gives rise to more than

one violation of the same Penal Code section . . . .” (Neal, supra, 55 Cal.2d 11,

18, fn 1.) Three of the four cases cited in the Neal footnote involved multiple

convictions that were held to be improper without any reliance on section 654. 9

9 As we have noted, at the time that Neal, supra, 55 Cal.2d 11, was decided,

courts that found section 654 applicable generally set aside the conviction, and not

merely the punishment. (McFarland, supra, 58 Cal.2d 748, 763.) The now-

familiar procedure of staying the punishment while preserving the conviction did

(footnote continued on next page)

7

Those three cases, discussed below, are People v. Clemett (1929) 208 Cal. 142

(Clemett); People v. Nor Woods (1951) 37 Cal.2d 584 (Nor Woods); and People v.

Roberts (1953) 40 Cal.2d 483 (Roberts). By contrast, there is no suggestion here

that multiple convictions were improper. Defendant was found hiding under the

stairs with seven guns. He was convicted of seven counts of being a felon in

possession of a firearm. (Former § 12021, subd. (a)(1).) Former section 12001,

subdivision (k), provided that the possession of “each firearm . . . shall constitute a

distinct and separate offense” under, among other provisions, section 12021.

Clemett, supra, 208 Cal. 142, involved a prosecution under a statute that

prohibited possession or operation of a still; the defendant was convicted of one

count of possessing and one count of operating the same still, on the same day.

This court granted review “solely for the reason that we entertained grave doubt as

to whether two separate crimes had been committed . . . .” (Id. at p. 143.) “As

early as People v. Shotwell, 27 Cal. 394, and People v. Frank, 28 Cal. 507, it was

held that co-operative acts constituting but one offense when committed by the

same person at the same time, when combined, charge but one crime and but one

punishment can be inflicted as one offense. „Where a statute makes two or more

distinct acts connected with the same transaction indictable, each one of which

(footnote continued from previous page)

not develop until later. (This historical development is reviewed in People v.

Benson (1998) 18 Cal.4th 24, 38-40 (dis. opn. of Chin, J.).) Indeed, after it found

that section 654 prohibited multiple punishment for arson in addition to two

attempted murders, the Neal court set aside the arson conviction; it did not merely

prohibit separate punishment. (Neal, supra, 55 Cal.2d at p. 21.) Thus, at that

time, the question whether multiple conviction was permitted was essentially the

same as the question whether section 654 prohibited multiple punishment.

Accordingly, it is somewhat understandable that the Neal footnote relied on cases

involving the question of multiple conviction.

8

may be considered as representing a stage in the same offense, it has in many

cases been ruled they may be coupled in one count. Thus, setting up a gaming

table, it has been said, may be an entire offense; keeping a gaming table and

inducing others to bet upon it, may also constitute a distinct offense; for either,

unconnected with the other, an indictment will lie. Yet when both are perpetrated

by the same person, at the same time, they constitute but one offense, for which

one count is sufficient, and for which but one penalty can be inflicted.‟ (Wharton

on Criminal Law, approved in People v. Shotwell, 27 Cal. 394.) Again, in People

v. Frank, 28 Cal. 507, it was said: [¶] „The indictment is good whether it be

regarded as containing two counts or but one. Where, in defining an offense, a

statute enumerates a series of acts, either of which separately, or all together, may

constitute the offense, all such acts may be charged in a single count, for the

reason that notwithstanding each act may by itself constitute the offense, all of

them together do no more, and likewise constitute but one and the same offense.‟ ”

(Clemett, at pp. 144-145.)

Applying this line of authority, the Clemett court reversed the possession

conviction, reasoning that “the legislature prescribed but one punishment for a

violation of said act . . . .” (Clemett, supra, 208 Cal. at p. 147.) “Clearly the

possession and control period is covered by the period during which the defendant

operated said still. The defendant may have had a still in his possession or under

his control without operating the same, but he could not have operated it without

having it under his control and in his constructive possession.” (Id. at p. 146.)

In Nor Woods, supra, 37 Cal.2d 584, a used car dealer was convicted of

two counts of grand theft for taking both a 1946 Ford and some cash in exchange

for a 1949 Ford, then failing to deliver the newer car or to return the trade-in and

money. This court reversed one of the convictions. “It is unnecessary to

determine under what circumstances the taking of different property from the

9

same person at different times may constitute one or more thefts. [Citation.] In

the present case both the car and the money were taken at the same time as part of

a single transaction whereby defendant defrauded [the victim] of the purchase

price of the 1949 Ford. There was, accordingly, only one theft, and the fact that

the sentences were ordered to run concurrently does not cure the error.

[Citations.]” (Id. at pp. 586-587.)

Roberts, supra, 40 Cal.2d 483, was a prosecution under Health and Safety

Code section 11500, which read: “ „Except as otherwise provided in this division,

no person shall possess, transport, sell, furnish, administer or give away, or offer

to transport, sell, furnish, administer, or give away, or attempt to transport a

narcotic except upon the written prescription of a physician . . . .‟ ” (Roberts, at p.

486.) The defendant and a confederate were convicted of conspiracy to violate the

statute. They were also convicted of violating the statute in three different ways

on the same occasion by illegally transporting, selling, and possessing heroin. The

court reversed the transportation and possession convictions. “The three acts are

charged and adjudged as separate crimes. However, „cooperative acts constituting

but one offense when committed by the same person at the same time, when

combined, charge but one crime and but one punishment can be inflicted.‟

(People v. Clemett (1929), 208 Cal. 142, 144; see, also, People v. Knowles (1950),

35 Cal.2d 175, 187.) The present case [Roberts] resembles the Clemett case in

that the only possession and transportation of heroin shown were those necessarily

incident to its sale. And as in the Clemett case (p. 150 of 208 Cal.) the error can

be corrected by this court.” (Roberts, at p. 491.)

While these cases all tangentially refer to punishment, they do so because

each held that the defendants were wrongfully convicted of multiple offenses

when only a single crime was committed. Naturally, because the convictions

failed, any punishment based on them would also be set aside.

10

The fourth case cited in the Neal footnote is People v. Brown (1958) 49

Cal.2d 577. There the court considered the application of section 654 to one act

that violated two different Penal Code provisions. The defendant killed Lucy

Sanchez in the course of an unlawful abortion and was convicted of both second

degree murder and abortion. Relying on section 654, this court reversed the

abortion conviction. “It is manifest from the evidence that defendant committed

against Lucy only one criminal act, that is, the insertion of a blunt instrument in

combination with the injection of a solution.” (Brown, at p. 590.) People v.

Coltrin (1936) 5 Cal.2d 649, another abortion/murder case, was overruled insofar

as it held, contrary to section 654, that a person could be “twice punished for one

act.” (Brown, at p. 593.) Thus, Brown was a straightforward application of

section 654‟s language and presaged the holding in Neal.

(2)

Both the language and purpose of section 654 counsel against applying it to

bar multiple punishment for violations of the same provision of law. Certainly the

language of section 654 does not support such an application. By its terms section

654 applies only to “[a]n act or omission that is punishable in different ways by

different provisions of law . . . .” (Italics added.)

Nor does the purpose of section 654 support a bar to multiple punishment

for multiple violations of the same provision of law. As we have said frequently,

the purpose of section 654 is to ensure that a defendant‟s punishment will be

commensurate with his culpability. (See, e.g., People v. Oates (2004) 32 Cal.4th

1048, 1063 (Oates); Latimer, supra, 5 Cal.4th at p. 1211; People v. Perez (1979)

23 Cal.3d 545, 550-551 (Perez); Neal, supra, 55 Cal.2d at p. 20.) We have also

observed that “[t]he Neal test does not, however, so ensure. A person who

commits separate, factually distinct, crimes, even with only one ultimate intent and

objective, is more culpable than the person who commits only one crime in pursuit

11

of the same intent and objective.” (Latimer, supra, 5 Cal.4th at p. 1211.) For the

reasons we gave in Latimer, discussed above, we have not repudiated the long-

standing holding of Neal. However, we here limit, rather than expand, its

incongruity by applying section 654 according to its terms, that is, to “[a]n act or

omission that is punishable in different ways by different provisions of law.”

In other contexts, we have declined to extend section 654‟s reach and bar

multiple punishment under the same provision of law. For example, section 654

does not apply to crimes of violence against multiple victims. (E.g., Oates, supra,

32 Cal.4th at p. 1063.)10 The reason is that “[a] defendant who commits an act of

violence with intent to harm more than one person or by means likely to cause

harm to several persons is more culpable than a defendant who harms only one

person.” (Oates, at p. 1063.)

Similarly, we have declined to apply section 654 where the defendant has

committed multiple violations of the same provision of law prohibiting sexual

assaults. In Harrison, supra, 48 Cal.3d 321, the defendant broke into the victim‟s

home and committed three separate acts of digital penetration. After each

penetration the victim was able to pull away. Twice the defendant was able to

overpower her and penetrate her again. After the third assault she was able to

retreat to a bathroom and lock the door. The entire episode lasted seven to 10

minutes. (Id. at pp. 325-326.)

First, the Harrison court found that the defendant was properly convicted of

three separate counts of sexual penetration by a foreign object. (Harrison, supra,

48 Cal.3d 321, 327-334.) It then considered the trial court‟s imposition of separate

10 Section 654 is not applicable where “ „one act has two results each of which

is an act of violence against the person of a separate individual.‟ ” (Neal, supra,

55 Cal.2d at pp. 20-21.)

12

consecutive sentences for each sexual offense. It held that section 654 did not bar

separate penalties for each assault, even though they involved violations of the

same code section and occurred during a brief period. It relied on the holding of

Perez, supra, 23 Cal.3d at page 553, that a “ „defendant who attempts to achieve

sexual gratification by committing a number of base criminal acts on his victim is

substantially more culpable than a defendant who commits only one such act.‟ ”

(Harrison, supra, at p. 336.)

The Harrison court rejected the defendant‟s argument that under section

654 he could not receive multiple punishments because his crimes involved

identical offenses. The court explained that to apply section 654 in that way

“would mean that „once a [defendant] has committed one particular sexual crime

against a victim he may thereafter with impunity repeat his offense,‟ so long as he

does not direct attention to another place on the victim's body, or significantly

delay in between each offense. [Citation.] However, it is defendant‟s intent to

commit a number of separate base criminal acts upon his victim, and not the

precise code section under which he is thereafter convicted, which renders section

654 inapplicable.” (Harrison, supra, 48 Cal.3d at pp. 337-338.)

Similarly, a felon who possesses several firearms is more culpable than one

who possesses a single weapon. The purpose of The Dangerous Weapons Control

Law,11 of which former section 12021 was a part, is to protect the public by

denying firearms to felons, who are considered more likely to commit crimes with

them. (People v. Bell (1989) 49 Cal.3d 502, 544 (Bell).) The Legislature has

made it clear that the magnitude of a felon‟s culpability depends on the number of

11 Former section 12000 et seq. (Enacted by Stats. 1953, ch. 36, § 1, p. 653;

repealed by Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012.)

13

weapons possessed. As noted, former section 12001, subdivision (k) specified that

the possession of “each firearm . . . shall constitute a distinct and separate offense”

under, among other provisions, former section 12021.12 An analogy to our

observation in Harrison is apt. To apply the section 654 bar to punishment for

multiple violations of the weapons possession statute here would mean that once a

felon had acquired one firearm “ „he may thereafter with impunity‟ ”13 acquire as

many guns as he wishes, at least as long as he keeps his arsenal in one place and is

arrested while possessing all of its contents. As we explain below, such a result

clearly contravenes express legislative intent.

(3)

Reconsidering the Neal footnote is a departure. Some Court of Appeal

decisions have expressly relied on it in applying section 654 to multiple

punishment for violations of the same provision of law. (See People v. Davey

(2005) 133 Cal.App.4th 384 (Davey); People v. Hall (2000) 83 Cal.App.4th 1084

(Hall).)

In Davey, supra, 133 Cal.App.4th 384, the Court of Appeal held that under

section 654, “a single act of indecent exposure constitutes only one crime for the

purpose of sentencing, regardless of the number of people who witness it.”

(Davey, at p. 387.) The court further held that “indecent exposure is not a violent

12 Former section 12001, subdivision (k), provided: “For purposes of

Sections 12021 [and other enumerated sections of the Pen. Code and Welf. & Inst.

Code], notwithstanding the fact that the term „any firearm‟ may be used in those

sections, each firearm . . . shall constitute a distinct and separate offense under

those sections.”

New section 23510 provides “notwithstanding the fact that the term „any

firearm‟ may be used in [the specified] sections, each firearm . . . constitutes a

distinct and separate offense under those sections.”

13 Harrison, supra, 48 Cal.3d at page 337.

14

crime for the purpose of the multiple-victim exception under section 654.” (Id. at

p. 392.) Citing the Neal footnote, the court said, “Although section 654 by its

terms bars only multiple punishment for a single act violating more than one

statute, it has long been interpreted also to preclude multiple punishment for more

than one violation of a single Penal Code section, if the violations all arise out of a

single criminal act.” (Davey, at p. 389.)

In Hall, supra, 83 Cal.App.4th 1084, the issue was “whether a single act of

exhibiting a firearm in a threatening manner in the immediate presence of several

peace officers in violation of section 417, subdivision (c), is punishable for as

many times as there are peace officers present pursuant to the multiple-victim

exception to section 654. We conclude that the plain language of section 654, its

purpose, and the case law construing it compel a single punishment for a single act

of exhibiting a firearm in violation of section 417, subdivision (c), regardless of

the number of peace officers present. The crime of exhibiting a firearm „in the

immediate presence of a peace officer‟ in violation of section 417, subdivision (c),

is, by its very definition, not committed upon a peace officer, but only in the

presence of a peace officer. The multiple-victim exception to section 654 requires

multiple victims, not multiple observers. Only once the exhibition of the firearm

becomes an assault may the observers become victims, and may a single act

warrant multiple punishment.” (Id. at pp. 1086-1087.) Relying on the Neal

footnote, the Court of Appeal stayed sentences on two of the three brandishing

convictions. (Id. at pp. 1088, 1096-1097.)14

14 In Britt, supra, 32 Cal.4th 944, this court did not rely upon or cite the Neal

footnote. However, the court did hold that section 654 barred punishing the

defendant for both of his violations of the same statute. The defendant, a

registered sex offender, was convicted in Sacramento County for failing to notify

authorities there that he had moved to El Dorado County. (§ 290, subd.(f)(1).)

(footnote continued on next page)

15

However, having reconsidered the Neal footnote, we conclude that section

654 does not bar multiple punishment for violations of the same provision of law.

In doing so we reject dictum, correct a legally unsupported principle, are more

consistent with our later jurisprudence, and conform to the plain language of the

statute. The stare decisis considerations that led to our policy decision in Latimer,

not to repudiate the Neal holding, do not weigh as heavily with regard to the Neal

footnote, particularly in light of its inconsistency with the text of the statute. The

Neal footnote has caused great confusion since its penning and is plainly obiter

dictum. In these circumstances, it is for this court, not the Legislature, to clarify

our own jurisprudence.

(4)

Defendant contends that if we hold section 654 does not govern multiple

punishment for violations of the same provision of law, we may apply the new

rule prospectively only. We agree.

(footnote continued from previous page)

Later, he was also convicted in El Dorado County for failing to notify authorities

in that county of the move. We held that prosecuting the El Dorado County action

after the defendant had been convicted in Sacramento County violated section

654‟s bar on multiple prosecutions. We also held that section 654‟s ban on

multiple punishment was violated because the defendant had a single objective:

avoiding police surveillance. “Accordingly, we conclude that a person subject to

section 290‟s reporting requirements who changes residence a single time within

California without reporting to any law enforcement agency, and who thus violates

both subdivisions (a) and (f) of section 290, may be punished for one of those

crimes, but not both.” (Britt, at pp. 953-954.) The court noted that “[t]his case

involves a single move directly from one jurisdiction to another. We express no

opinion on how section 654 would apply to other facts, such as multiple moves or

the maintenance of multiple residences.” (Id. at p. 951, fn. 4.)

16

The due process clause is a limitation on the powers of the legislature and

does not of its own force apply to the judicial branch of government. However,

the principle on which the clause is based, that a person has a right to fair warning

of the conduct which will give rise to criminal penalties, is fundamental to our

concept of constitutional liberty. As such, that right is protected against judicial

action by the due process clause of the Fourteenth Amendment to the United

States Constitution. (Marks v. United States (1977) 430 U.S. 188, 191-192;

People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 21; People v. Morante

(1999) 20 Cal.4th 403, 431.)

Our case most nearly on point is People v. King (1993) 5 Cal.4th 59, where

the court overruled In re Culbreth (1976) 17 Cal.3d 330. The Culbreth court had

held that even if there were multiple counts involving multiple victims of violent

crime, a firearm use enhancement under section 12022.5 could be imposed only

once if all the charged offenses were incident to one objective and effectively

comprised an indivisible transaction. (Culbreth, at p. 333.) The King court

concluded that its holding overruling Culbreth could not be applied retroactively.

(King, at p. 80.) “The Culbreth rule has been the law of this state since 1976. It

was the law when defendant committed his crimes. Refusing to apply it here

would make the punishment for his crimes more burdensome after he committed

them. Defendant is therefore constitutionally entitled to its benefit.” (Ibid.)

While the ex post facto clause bars applying this new rule to defendant, the

enactment history of former section 12021, subdivision (a) makes it clear that the

Legislature intended that a felon found in possession of several firearms be liable

to conviction of and punishment for each of the firearms.

B. Legislative History

Former section 12021, subdivision (a)(1), made it a felony for a convicted

felon to possess “any firearm.” As we have explained, the purpose of The

17

Dangerous Weapons Control Law, of which section former 12021, subdivision (a)

was a part, is to protect the public by denying firearms to felons, who are

considered more likely to commit crimes with them. (Bell, supra, 49 Cal.3d at

p. 544.)

The Legislature, in enacting former section 12001, subdivision (k) in 1994,

made it clear that the magnitude of a felon‟s culpability depends on the number of

weapons he or she possesses. It provided that the possession of “each firearm . . .

shall constitute a distinct and separate offense” under, among other provisions,

section 12021.

Section 12001, subdivision (k), was enacted in response to People v. Kirk

(1989) 211 Cal.App.3d 58. Kirk construed former section 12020, subdivision (a),

which made it a felony to possess “any instrument or weapon of the kind

commonly known as a . . . sawed-off shotgun.” (Stats 1984, ch. 1562, § 1.1,

p. 5499, italics added.) The question was whether Kirk could be convicted of two

violations of former section 12020, subdivision (a) “where he possessed two

sawed-off shotguns at the same time and place.” (Kirk, at p. 61.) Finding federal

authority persuasive on the question whether the term “any” was ambiguous, the

Court of Appeal concluded that: (1) the term “any” in former section 12020,

subdivision (a), ambiguously indicated the singular or the plural; and (2) the

ambiguity should be construed in favor of a defendant. (Id. at pp. 62-66.) The

statute, the court held, “fail[ed] to provide any warning that separate convictions

will result for each weapon simultaneously possessed.” (Id. at p. 65.) The court

acknowledged, however, that the Legislature could amend the statute to permit

multiple conviction and punishment, if it wished: “We have no doubt the

Legislature could, it if wanted to, make criminal and subject to separate

punishment the possession of each and every sawed-off shotgun found at the same

time and place. [Citation.]” (Id. at p. 62, italics added.) In response, the

18

Legislature amended the statute to do just that. The legislative history of section

12001, subdivision (k), is replete with statements that it was intended to overrule

Kirk and to make it clear that possession of each weapon constitutes a separate

offense under the enumerated statutes. (See, e.g., Legis. Counsel‟s Dig., Sen. Bill

No. 37, 5 Stats. 1994 (1993-1994 1st Ex. Sess.) Summary Dig., pp. 583-584.)

The Legislature, in repudiating Kirk and specifically providing that

possession of each firearm is a separate offense, effectively adopted the rule we

announce today. It expressed its clear intention that a felon may be punished

separately for each firearm possession count of which he is convicted.

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

KENNARD, ACTING C. J.

BAXTER, J.

CHIN, J.

LIU, J.

SEPULVEDA, J. *

_______________________________

* Associate Justice, Court of Appeal, First Appellate District, Division Four,

assigned by the Acting Chief Justice pursuant to article VI, section 6 of the

California Constitution.

19

CONCURRING OPINION BY WERDEGAR, J.

In February 2006, police found defendant, a felon, in simultaneous

possession of seven firearms. At that time, as now, it was illegal for a felon to

possess a firearm. (Pen. Code,1 former § 12021, subd. (a)(1); now see § 29800,

subd. (a)(1), added by Stats. 2010, ch. 711, § 6.) Defendant was convicted of

seven separate counts of violating former section 12021, one conviction for each

prohibited weapon. That he could be convicted of seven separate crimes on these

facts is clear from the statutory scheme. (Former § 12001, subd. (k); now see

§ 23510.) Whether he could be separately punished for each conviction is the

question before us.

As I explain, I agree with the majority that defendant may be separately

punished for seven separate crimes. Like the majority, I reach that conclusion

because the Legislature specifically amended the Penal Code to provide that each

weapon could be the basis of a separate conviction, and it could have had no

reason or purpose to make that change had it not intended that defendant could

also be punished for each of those separate convictions. (Maj. opn., ante, at

pp. 18-19.) Because there is no need to proceed further and disapprove dictum in

Neal v. State of California (1960) 55 Cal.2d 11, which found section 654

1 All further statutory references are to the Penal Code unless otherwise

stated.

1

applicable to preclude multiple punishment for multiple violations of the same

statute, I do not join that part of the majority opinion.

Former section 12021 includes no express language referencing section

654, nor does it provide that it applies “notwithstanding any other provision of

law” or contain some equivalent language to suggest an exception to section 654‟s

prohibition on multiple punishment. But a legislative reaction to an appellate

decision involving a different but related weapons law suggests the Legislature

intended that felons be separately punished for each weapon they illicitly possess.

In People v. Kirk (1989) 211 Cal.App.3d 58, the defendant was convicted

of possessing a sawed-off shotgun and a sawed-off rifle in violation of former

section 12020, subdivision (a).2 The facts indicated his possession of the two

weapons was simultaneous: police entered the defendant‟s home in response to a

report of a fight involving gunshots “and found a sawed-off shotgun on the living

room couch and a sawed-off rifle in a closet in the bedroom.” (Kirk, at p. 60.)

The Kirk court explained that “[t]he principal question is whether defendant can be

convicted of two violations of former section 12020 where he possessed two

sawed-off shotguns at the same time and place.” (Id. at p. 61.) Finding it

irrelevant that the weapons were of different types and observing that no evidence

showed they were possessed at different places or different times (ibid.), the Kirk

court focused on the word “any” in the statute to conclude the defendant was

2 At the time the defendant in Kirk committed his crime, former section

12020, subdivision (a) made it a felony for “[a]ny person in this state” to possess

“any short-barreled shotgun” or “any short-barreled rifle.” (Stats. 1984, ch. 1562,

§ 1.1, p. 5499.) A substantially identical law now appears as section 33215.

(Stats. 2010, ch. 711, § 6.)

2

“entitled to the benefit of the statutory ambiguity”3 (Kirk, at p. 65), that the

possession of two illegal firearms constituted but one punishable act, and that

section 654 barred punishing the defendant more than once for the simultaneous

possession of two firearms (Kirk, at p. 65).

In response to People v. Kirk, supra, 211 Cal.App.3d 58, the Legislature

amended former section 12001 to clarify that each illegal firearm was the basis of

a separate crime. “In 1994, specifically in response to Kirk, the Legislature

amended section 12001 by adding new subdivision[] (k) . . . . (Stats. 1994, First

Ex. Sess. 1993–1994, ch. 32, § 1.) The new section[] provided as follows:

[¶] „(k) For purposes of Section[] 12021 . . . , of this code, . . . notwithstanding the

fact that the term “any firearm” may be used in [that] section[], each firearm . . .

shall constitute a distinct and separate offense under [that] section[]. . . .‟

[¶] [This new subdivision was] added with the express intent of overruling the

holding in People v. Kirk „insofar as that decision held that the use of the term

“any” in a weapons statute means that multiple weapons possessed at the same

time constitutes the same violation.‟ (Stats. 1994, First Ex. Sess. 1993–1994, ch.

3 “We have no doubt the Legislature could, if it wanted to, make criminal

and subject to separate punishment the possession of each and every sawed-off

shotgun found at the same time and place. [Citation.] The question is whether it

did so by outlawing the possession of „any instrument or weapon of the kind

commonly known as a . . . sawed-off shotgun, . . .‟ (Former § 12020, subd. (a),

[second] italics added.)” (People v. Kirk, supra, 211 Cal.App.3d at p. 62, first

italics added.) After reviewing analogous federal law, the Kirk court concluded

that “former section 12020, subdivision (a) is facially ambiguous. As noted, the

statute is directed at „Any person . . . who . . . possesses . . . any instrument or

weapon . . . .‟ (Italics added.) By its use of the term „any‟ rather than „a,‟ the

statute does not necessarily define the unit of possession in singular terms” (Kirk,

at p. 65), and that “[i]n the circumstances, defendant is entitled to the benefit of the

statutory ambiguity” (ibid.).

3

32, § 5.)” (People v. Rowland (1999) 75 Cal.App.4th 61, 65; People v. DeGuzman

(2003) 113 Cal.App.4th 538, 544 [quoting Rowland].)

At the time defendant was arrested in 2006, former section 12021,

subdivision (a)(1) provided: “Any person who has been convicted of a felony . . .

who owns, purchases, receives, or has in his or her possession or under his or her

custody or control any firearm is guilty of a felony.” (Stats. 2004, ch. 593, § 6,

p. 4665; § 29800, subd. (a)(1) now provides the same thing.) Also at that time,

former section 12001, subdivision (k), as amended in response to People v. Kirk,

supra, 211 Cal.App.3d 58, provided that “For purposes of Section[] 12021 . . .

each firearm . . . shall constitute a distinct and separate offense . . . .” (Stats. 2005,

ch. 715, § 4, p. 5733.) Clearly the statutory scheme authorized the jury to convict

defendant of seven separate counts of weapon possession, one for each firearm.

But does it also compel an inference that the Legislature intended an implied

exception to section 654 to permit multiple punishment as well?

I agree with the majority that it does. By adding subdivision (k) to former

section 12001 specifically to overrule People v. Kirk, supra, 211 Cal.App.3d 58,

the Legislature not only made clear that multiple convictions were permissible, it

also necessarily implied that multiple sentences were also authorized. This is so

because no plausible reason exists to allow for multiple convictions if the

offender‟s aggregate sentence were to remain the same. “[W]e cannot assume our

Legislature engaged in an idle act or enacted a superfluous statutory provision.”

(California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)

14 Cal.4th 627, 635.)

4

Inferring an exception to section 654 from the addition of subdivision (k) to

former section 12001 suffices to resolve the case before us. It is thus unnecessary

to address the continued vitality of the Neal dictum, which found section 654

applicable to violations of the same statute. (Neal v. State of California, supra, 55

Cal.2d at p. 18, fn. 1.) Although I do not join the majority‟s discussion concerning

Neal, I concur in the balance of the majority opinion finding section 654

inapplicable here.

WERDEGAR, J.

5

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Correa

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 161 Cal.App.4th 980

Rehearing Granted

__________________________________________________________________________________

Opinion No. S163273

Date Filed: June 21, 2012

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Patricia C. Esgro

__________________________________________________________________________________

Attorneys for Appellant:

Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Robert C. Nash and

Jennevee H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Conrad Petermann

Law Office of Conrad Petermann

323 East Matilijia Street, Suite 110

Ojai, CA 93023

(805) 646-9022

Jennevee H. De Guzman

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-255

(916) 323-5809