The opinion
KENNARD, J., Dissenting.
May a single prior felony conviction be used both to establish an element of a charged offense (here, the offense of possession of firearm by a person previously convicted of a felony) and to support a prior prison term enhancement (that is, the imposition of an additional and consecutive prison term when the person committing a felony has previously served a term in state prison)? The majority holds that it may. I disagree.
In brief, using a single prior conviction both to establish an element of a charged offense and to support a prior prison term enhancement for that offense violates an established rule of statutory construction that a single fact may not be used both to establish an element of an offense and to increase the punishment for that offense. The majority attempts to escape from this rule by drawing a distinction between increased punishment for a prior conviction and increased punishment for a prior prison term, but the majority’s reasoning is irreconcilable with prior decisions of this court rejecting *137 that same distinction as “untenable” and “hypertechnical.” Consistent with those prior decisions, I would apply the established rule here to bar imposition of the additional term for the prior prison term.
I
Defendant Baird pleaded guilty to possession of a firearm after having been convicted of a felony (Pen. Code, § 12021, subd. (a)). He admitted an allegation that he had served a prison term for a felony (id., § 667.5). The superior court granted defendant probation, but later the court revoked probation after defendant violated certain conditions of the probation. The court then sentenced defendant to a prison term of two years for the illegal weapons possession offense. The court added an additional and consecutive one-year term as a sentence “enhancement” based on defendant’s admission of the prior prison term allegation, making a total aggregate prison term of three years. Defendant appealed.
The Court of Appeal struck the one-year enhancement for the prior prison term, agreeing with defendant that it was improper to increase defendant’s sentence because he had served a prison term for the same prior conviction used to establish an element of the firearm possession charge. The Court of Appeal concluded, first, that a single prior felony conviction may not be used both to establish an element of the charged offense and to establish an element of a sentence enhancement and, second, that a prior felony conviction is essentially an “element” of the prior prison term enhancement.
This court granted the People’s petition for review.
II
As authority for the proposition that a prior felony conviction may not be used both to establish an element of a charged offense and to increase the punishment for that same offense, the Court of Appeal cited this court’s decision in People v. Edwards (1976) 18 Cal.3d 796 [ 135 Cal.Rptr. 411 , 557 P.2d 995 ]. In that case, a jury had convicted the defendant of firearm possession by a convicted felon (the same offense at issue here), and the superior court had “augmented” his sentence (that is, it had imposed an increased minimum term) because he had previously been convicted of a felony. The primary issue before this court was whether the superior court was required to give reasons for rejecting a probation recommendation in a presentence report. Before addressing that issue, this court took a single *138 paragraph to dispose of what we characterized as “an obvious error in sentencing.” (Id. at p. 800.) We said that using the same prior conviction both to establish an element of the offense and to increase the punishment for that same offense “runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.” (Ibid.) This court did not explain the legal basis of the “established rule,” but we did cite four earlier cases as authority for the rule, one of these being In re Shull (1944) 23 Cal.2d 745 [ 146 P.2d 417 ]. An examination of this court’s decision in Shull sheds light on the analytical basis of the rule.
Shull was a proceeding in habeas corpus by a prisoner who contended that he was entitled to release because he had completed his term. (In re Shull, supra, 23 Cal.2d 745, 747 .) The prisoner had been convicted of assault with a deadly weapon (Pen. Code, § 245) and had completed the term of imprisonment for that crime. The issue was whether he should be required to also serve a separate and additional term, under section 3 of the Deadly Weapons Act (Stats. 1923, ch. 339, p. 695 et seq.), for committing a felony while armed with any of certain statutorily enumerated deadly weapons. Ruling that the prisoner should not be required to serve the additional term, we said:
“We do not believe, however, that the Legislature intended that section 3 of the Deadly Weapons Act should be applied where the felony of which the person stands convicted is that of assault with a pistol under section 245 of the Penal Code. . . . It is apparent that section 245 of the Penal Code is a specific provision. It defines and determines the punishment for a specific kind of a crime, assault with a deadly weapon, in the instant case, a pistol. On the other hand, section 3 of the Deadly Weapons Act which imposes the additional penalty refers to no particular crime, but purports to require an added punishment for felonies generally where the one committing the same is armed with a pistol or the other weapons designated therein and in section 1. It is the general rule that a special statute controls over a general statute. [Citation.] It is not unreasonable to suppose that the Legislature believed that for felonies in which the use of a gun was not one of the essential factors, such as rape, larceny, and the like, an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon. Hence, such a condition would be reasonable grounds for increasing the penalty where felonies are involved which do not include as a necessary element being armed with a pistol. . . . Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that *139 for the same offense without any additional factor existing the added punishment should be imposed.” (In re Shull, supra, 23 Cal.2d 745, 749-751 .)
Thus, the “established rule” prohibiting use of a single fact to both establish an element of a crime and increase the punishment for the same crime is a rule of legislative intent. It is based on the commonsense idea that when a fact, such as a defendant’s prior felony conviction, is part of the definition of a crime, the punishment specified for that crime already takes that fact into account. Because the fact has already been fully taken into account in the punishment statutorily prescribed for the crime, the Legislature presumably does not intend that the statutorily prescribed punishment be further increased, under a more general statute, for the very same fact “without any additional factor existing.” (In re Shull, supra, 23 Cal.2d 745, 751).
This reasoning presupposes a model of criminal punishment in which determining the proper sentence for a defendant convicted of one or more crimes is analogous to what an accountant does when preparing a financial statement for an individual or corporation. To accurately portray the client’s financial position, the accountant must count each asset or liability once and only once. If an asset were to be counted more than once, the total on the credit side would be exaggerated and inaccurate. If a liability were counted more than once, the debit side of the statement would be similarly inaccurate and exaggerated. So also with the “accounting” that goes into a sentence calculation. Ideally, to accurately assess the defendant’s culpability, each relevant aggravating and mitigating circumstance should be counted once, but only once. Any “double counting,” on either the aggravating or mitigating side, or any omission, will yield a distorted and inaccurate picture of the defendant’s culpability.
In fact, the prohibition against “dual use” or “double counting” runs throughout our sentencing law. One example is found in Penal Code section 654, which states that when an act or omission “is made punishable in different ways by different provisions” of the Penal Code, it “may be punished under either of such provisions, but in no case can it be punished under more than one.” Another example of the “dual use” prohibition is found in Penal Code section 1170, subdivision (b), which specifies that “the fact of any enhancement” may not be used to impose the upper term. The same prohibition appears in rule 420(c) of the California Rules of Court. A companion provision, rule 420(d) states that a “fact” that is an element of the crime may not be used to impose the upper term. Finally, there is the judge-made rule of statutory construction, already discussed, that when a prior conviction is an element of the offense, it may not also be used to *140 increase punishment. (People v. Edwards, supra, 18 Cal.3d 796, 800 ; see also People v. Wilks (1978) 21 Cal.3d 460, 470 [ 146 Cal.Rptr. 364 , 578 P.2d 1369 ].) In a few instances, however, the Legislature has expressly permitted double counting. (See Pen. Code, § 12022.5, subd. (d) [firearm use enhancement may be imposed for the offenses of assault with a firearm, assault with a deadly weapon, or murder by shooting from a motor vehicle]; Health & Saf. Code, § 11370.2, subds. (b) & (c) [prior drug offense enhancement may be imposed along with prior prison term enhancement].) These provisions show that the Legislature knows how to carve out an exception to the general dual-use prohibition when it wishes to do so. 1
Hard questions are presented in applying the dual use prohibition when there is an area of partial overlap—that is, when the statutory definition of a crime and the requirements of a penalty-increasing provision (or the requirements of two such penalty provisions) share a common fact or element but each has at least one additional fact or element that is not common. If both provisions are applied, the common fact or element is double counted. If only one provision is applied, the noncommon fact or element of the other provision is not counted at all. Neither solution is perfectly satisfactory and courts must decide whether to permit the dual use based on what seems the most reasonable inference concerning an unstated legislative intent.
Returning to the facts of this case, the question to be decided is this: does the “established rule” against double counting a fact as both an element of an offense and as a factor warranting increased punishment for the offense apply to the offense of firearm possession by a convicted felon and the punishment enhancing provision for defendants who have served prior prison terms? The majority concludes that it does not. The majority reaches this conclusion by determining that here the fact which is an element of the offense—defendant’s previously having been convicted of a felony—differs essentially from the fact used to increase the punishment for the offense— defendant’s previously having served a prison term. (Maj. opn., ante, at p. 132.) But this court has twice previously rejected the very distinction the majority seeks to draw, first in People v. Prather (1990) 50 Cal.3d 428 [ 267 Cal.Rptr. 605 , 787 P.2d 1012 ], and then again in People v. Jones (1993) 5 Cal.4th 1142 [ 22 Cal.Rptr.2d 753 , 857 P.2d 1163 ].
In Prather , this court held that an amendment to our state Constitution requiring that prior felony convictions be used for sentence enhancement *141 “without limitation” (Cal. Const., art. I, § 28, subd. (f)) abrogated the statutory “double-the-base-term” limitation (Pen. Code, § 1170.1, subd. (g)) as applied to the “prior prison term” enhancement (id., § 667.5, subd. (b)). (People v. Prather, supra, 50 Cal.3d 428, 440 .) To reach this conclusion, we had to explain why the constitutional language referring to prior felony convictions applied to an enhancement for prior prison terms. We did so in the following way: “Section 667.5(b) provides that ‘where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.' (Italics added.) We think it clear that section 667.5(b) is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony’s seriousness, at the prior prison term. That is, we believe section 667.5(b), fairly read, merely provides a special sentence enhancement for that particular subset of ‘prior felony convictions’ that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment.” (People v. Prather, supra, 50 Cal.3d 428, 440 , original italics.)
In People v. Jones, supra, 5 Cal.4th 1142 , the issue was whether a defendant’s sentence for a felony conviction could be increased by imposing additional prison terms both for a prior serious felony conviction (under Pen. Code, § 667) and for the prior prison term served for the very same conviction (under Pen. Code, § 667.5). We concluded that the two sentence enhancement provisions are alternative rather than cumulative—that is, the sentencing court is to impose the greater of the two but not both. To reach this conclusion, we relied on People v. Prather, supra, 50 Cal.3d 428 , for the proposition that “both enhancements apply to the same facts—the prior conviction of a felony.” (People v. Jones, supra, at p. 1149 .) We reaffirmed the conclusion we had reached in Prather that “the distinction between prior prison terms and prior felonies for enhancement purposes [is] ‘untenable’ and, by inference, ‘hypertechnical’ and ‘ “supertechnical.” ’ ” (People v. Jones, supra, at p. 1148 .)
Thus, in rejecting the “established rule” against dual use because of a distinction between a prior felony conviction and a prior prison term, the majority is relying on a distinction that this court has previously rejected as “untenable” and “hypertechnical.” (People v. Jones, supra, 5 Cal.4th 1142, 1148 ; People v. Prather, supra, 50 Cal.3d 428, 440 .)
It is true, of course, as the majority points out, that not every prior felony conviction will expose a defendant to the prior prison term enhancement, but only “that particular subset of ‘prior felony convictions’ that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment." *142 (People v. Prather, supra, 50 Cal.3d 428, 440 , original italics.) But essentially the same was true in In re Shull, supra, 23 Cal.2d 745. There, the offense was defined as an assault with any deadly weapon (Pen. Code, § 245), while the sentence augmentation applied to crimes committed with a subset of deadly weapons—firearms and certain other specific weapons (see In re Shull, supra, 23 Cal.2d at p. 748). Thus, a defendant who used a deadly weapon not listed in the Deadly Weapons Act could be convicted of assault with a deadly weapon (see, e.g., People v. Morlock (1956) 46 Cal.2d 141, 145-146 [ 292 P.2d 897 ] [fence post]) without qualifying for the additional term under the act, just as a defendant who did not serve a prison term for a prior felony conviction may be convicted of firearm possession by a convicted felon without qualifying for the prior prison term enhancement.
The inference of legislative intent to preclude dual use is strongest, of course, when the fact that is an element of the offense will, in every instance, also satisfy the requirements for the increased punishment. But the same inference of legislative intent is also justified when the increased punishment is based primarily on the fact that is an element of the offense. That is the situation here. As this court explained in People v. Prather, supra, 50 Cal.3d 428, 440 , the prior prison term enhancement is “aimed primarily at the underlying felony conviction.”
The majority asserts that dual use is permissible because “it cannot be said that all or nearly all felony convictions used to establish the ex-felon element of a section 12021 violation will have resulted in the service of a prior prison term.” (Maj. opn., ante, at p. 134.) But the majority’s “all or nearly all” standard is too strict. Rather, an inference of legislative intent to preclude dual use is proper whenever the fact that is an element of the offense will “necessarily or commonly” also satisfy the requirements for increased punishment. {People v. Jenkins (1980) 28 Cal.3d 494, 502 [ 170 Cal.Rptr. 1 , 620 P.2d 587 ], italics added; accord, People v. Coronado, (1995) 12 Cal.4th 145, 154 .) Here, it cannot be said that convicted felons found in possession of a firearm have not “commonly” served prison terms for their felony convictions.
My research indicates that over half of all persons convicted of felonies in California serve a prison term for that felony. 2 When the group of convicted felons is narrowed to those subsequently found in possession of a firearm, *143 the percentage who have previously served a prison term is probably even larger because the subsequent possession of a firearm indicates both a propensity for violence (making it more likely that the prior felony offense was serious enough to warrant imprisonment) and a continued disregard of legal requirements (making it more likely that the individual did not successfully complete probation). Accordingly, I conclude that felony convictions used to establish the prior conviction element of the offense of firearm possession by a convicted felon will commonly have resulted in the service of prison terms.
III
As we indicated in People v. Prather, supra, 50 Cal.3d 428 , the prior prison term enhancement addresses a subset of all instances in which the defendant has suffered a prior felony conviction, and the enhancement is aimed primarily at the prior conviction itself and only secondarily at the prison term. Therefore, to impose the prior prison term enhancement on an offense that has as an element a prior felony conviction means that this fact—the prior felony conviction—is being considered twice, first as an element of the offense and second to increase the punishment for the same offense, thus unduly and irrationally lengthening the sentence. Because the subset includes a large percentage of the entire group—because, in other words, the prior felony conviction of persons later found in possession of firearms will commonly have resulted in prison terms—construction of the relevant statutes is controlled by the established rule expressed in People v. Edwards, supra, 18 Cal.3d 796 , which prohibits dual use of a single prior conviction to both prove an offense and increase the punishment for that offense.
*144 Accordingly, I would affirm the judgment of the Court of Appeal striking the prior prison term enhancement.
Mosk, J., concurred.
As the majority notes (maj. opn., ante, at p. 131), some Courts of Appeal have expressed the view that the Legislature abrogated the general rule of construction prohibiting dual use by first codifying it in, and then deleting it from, Penal Code section 1170, subdivision (b). For the reasons stated in People v. Darwin (1993) 12 Cal.App.4th 1101, 1103-1104 [ 15 Cal.Rptr.2d 894 ], I conclude that this view is mistaken.
A 1995 report of the Department of Justice, Law Enforcement Information Center, contains a table (table 38) showing the “adult felony arrest dispositions” for the years 1989 to 1994. According to this table, in 1993 the number of felony arrests resulting in superior court convictions was 81,342, of which 29,852 were initially sentenced to prison or death, 1,198 were committed to the California Rehabilitation Center, 70 were sent to the Youth Authority, 49,472 were granted probation, 737 received only a jail sentence or a fine, and 13 were *143 classified as “other.” To determine how many of the superior court convictions were for felony offenses, I subtracted the 737 who received the nonfelony sentences of county jail or fine, leaving a total of 80,605 persons convicted of felonies. Because the table does not indicate how many of those initially granted probation eventually violated probation and served a prison term, I consulted another reliable source, the California Statistical Abstract, which reports that in the same year, 1993, our state prisons received 46,315 inmates who were “committed by court.” (Cal. Statistical Abstract 1994, table N-2, p. 176.) This category would appear to include both those convicted of felonies who were initially denied probation and those who were sent to prison following a probation violation. Thus, it appears that of 80,605 persons convicted of felonies, 46,315 served prison terms.
I recognize the possible objections to this conclusion. The figure 80,605 may not represent the total felony convictions that actually occurred in 1993, but rather the total felony convictions resulting from arrests in 1993. And the 46,315 persons committed to prison in 1993 undoubtedly include some who were convicted in earlier years and were sent to prison following probation revocation, and the same figure undoubtedly excludes some who were convicted in 1993 but were committed to prison only after a probation revocation in a later year. Nonetheless, I think one can reasonably conclude from this data, in the absence of a more precise and reliable measure, that over half of those convicted of felonies in California in recent years serve prison terms for those felony convictions.