People v. Skeirik

BLEASE, Acting P. J., Concurring and Dissenting.

I concur in the judgment and opinion except for part IV, as to which I dissent.

In part IV the majority opinion upholds the judgment of sentence predicated upon the finding that defendant was a habitual criminal within the meaning of Penal Code section 667.7, subdivision (a) and therefore subject to a term of life imprisonment. 1 It does so on the theory that defendant’s 1966 conviction of first degree robbery (former § 211a) is within section 667.7 because it constitutes an adjudication that he used a loaded pistol in the robbery. The sole basis for that conclusion lies in a single excerpt from the record of the 1966 case, that the jury found defendant guilty “as charged,” that he did “willfully, unlawfully and feloniously rob Laura Jean Logan of money by then and there using a deadly weapon, to-wit: a pistol.” Since this record will not sustain the conclusion I dissent.

In People v. Brookins (1989) 215 Cal.App.3d 1297 [ 264 Cal.Rptr. 240 ] we held that “deadly weapon,” as the sole term of art regarding robbery by means of a weapon in section 667.7, subdivision (a), refers to a loaded weapon or a weapon used as a bludgeon. We concluded that this test was not satisfied by evidence the defendant was convicted of a robbery with an enhancement for gun use under section 12022.5 because “firearm,” as used in that section, is not limited to a loaded weapon. Similarly, it cannot be determined on the record in this case whether the gun employed in the 1966 robbery was loaded or used as a bludgeon. 2 Brookins was resolved as a definitional question, turning on the meaning of a statute, section 12022.5. Similarly, this case turns on the meaning of “deadly weapon,” as used in former section 211a. It also turns on the significance to be attributed to a conviction under former section 211a for the use of a weapon so characterized in the charging papers.

Defendant was convicted in 1966 pursuant to the definition in former section 211a that “[a]ll robbery which is perpetrated by torture or by a *470 person being armed with a dangerous or deadly weapon ... is robbery in the first degree.” (Stats. 1961, ch. 1874, p. 3975.) The majority opinion relies upon a single case for its interpretation of this language, People v. Raner (1948) 86 Cal.App.2d 107, 113 [ 194 P.2d 37 ]. In that case the court said “[t]he distinction . . . between unloaded guns when used or threatened to be used as bludgeons, and when not so used, is the distinction between unloaded guns as deadly weapons and as merely dangerous weapons.” The majority opinion seizes upon this distinction, reasons that the term “deadly weapon” employed in the 1966 charging document must reflect this distinction, and concludes that defendant must have been convicted of using a loaded pistol.

The first difficulty with this reasoning is that there is a line of cases interpreting former section 211a which does not make this distinction. In People v. Raleigh (1932) 128 Cal.App. 105 [ 16 P.2d 752 ] the court distinguished between two classes of dangerous or deadly weapons, rather than a class of dangerous and a class of deadly weapons. In Raleigh the terms “dangerous weapon” and “deadly weapon” were treated as synonymous. It distinguished between instruments designed to be lethal [“guns, dirks and blackjacks”] and instruments merely used in a lethal way. On this point Raleigh has been followed by the California Supreme Court, while Raner has never been cited for its distinction. Thus, the best that can be said for the majority argument is that the meaning of former section 211a is ambiguous and on that score the defendant is entitled to the benefit of the ambiguity.

The second difficulty is that the reasoning of the majority opinion is built on an unsound premise. Because “pistol” is not qualified by “loaded” in the charging document, the success of the majority theory is dependent, not only upon equating “deadly weapon” with loaded pistol, but upon equating conviction for use of a deadly weapon with conviction for use of a loaded pistol. This second step is unexamined and cannot be taken. Under former section 211a a first degree robbery was committed regardless whether the weapon employed was “dangerous” or “deadly”, hence it was of no consequence to a conviction whether the weapon was loaded.

I amplify these arguments.

Section 667.7, subdivision (a)(1) requires imposition of a life term when a defendant has served two prior prison terms meeting the criteria of section 667.7, subdivision (a). The application of this section to defendant is dependent upon the finding he was convicted of a 1966 “robbery involving the use of. . .a deadly weapon ” as that term is employed in section 667.7, subdivision (a). In this court’s decision in People v. Brookins, supra, 215 *471 Cal.App.3d 1297 , upon which the majority opinion relies, we ruled that because the term “deadly weapon” is the sole term employed in section 667.7, subdivision (a), it is to be distinguished from a “dangerous” weapon and means therefore “either an instrument designed to cause death or great bodily injury or as an instrument used in such a fashion as to be capable of causing death or great bodily injury.” ( 215 Cal.App.3d at p. 1307 .)

We said that “[ujnder this settled meaning, an unloaded firearm not used as a bludgeon meets neither definition and hence is not a deadly weapon.” (Brookins, 215 Cal.App.3d at p. 1307 .) The majority opinion goes wrong in imputing “this settled meaning” to former section 211a, for Brookins manifestly did not. Rather, Brookins here refers to the settled meaning of the term “deadly weapon” where it is the sole statutory term of significance, as with the probation statute at issue in Raner or the habitual criminal statute at issue here and in Brookins . We expressly noted that there was no settled meaning for the term “deadly weapon” in former section 211a. We said: “But the distinction between deadly weapons on the one hand and dangerous ones on the other has not always been made explicit or even drawn at all. In part, this is so because the term ‘dangerous’ has sometimes been conjoined with that of ‘deadly.’ (See, e.g., former Pen. Code, 211a (Stats. 1961, ch. 1874, § 1) [robbery perpetrated when armed with ‘a dangerous or deadly weapon’ was first degree].) On occasion, the cases have treated the terms as synonymous and the distinction drawn has been between those instruments which are designed to be lethal [“guns, dirks and blackjacks”] and those which are merely used in a lethal way. Thus, in People v. Raleigh (1932) 128 Cal.App. 105 [], in an opinion described in a leading text as ‘definitive’ ([citing Witkin & Epstein]), the court distinguished between two classes of dangerous or deadly weapons . . . .” {Id. at p. 1305.)

As Brookins points out, in Raleigh the terms “dangerous” and “deadly” were treated as “synonymous.” For that reason it was said of Raleigh : “There can be no doubt at all, in this state, that an unloaded gun can be a ‘dangerous’ or ‘deadly’ weapon within the meaning of section 211a.” (People v. Ward (1948) 84 Cal.App.2d 357, 360 [ 190 P.2d 972 ].) As Brookins notes, Raleigh was “quoted with approval in People v. Graham (1969) 71 Cal.2d 303, 327-329 [].” ( 215 Cal.App.3d at p. 1305 .) Graham , which is the latest Supreme Court case to visit the subject, follows Raleigh in distinguishing between “two classes of ‘dangerous or deadly weapons’ ” rather than between “dangerous” and “deadly weapons.” (71 Cal.2d at p.327.) Raleigh was also quoted with approval in People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], decided the year before defendant’s trial. Aranda does distinguish between “dangerous” and “deadly” weapons, but concludes the distinction is without significance under former section 211a because “[t]he prosecution does not have to prove [inter alia] that the *472 gun was loaded (People v. Raleigh []; People v. Egan, 77 Cal.App. 279, 284 [])... .” ( 63 Cal.2d at p. 532 .)

Because of these cases the CALJIC instructions likely applicable during the period of defendant’s 1966 conviction make no distinction between dangerous and deadly weapons. CALJIC No. 210-B (rev. ed. 1946) provided simply, based upon Raleigh, supra, that: “A ‘dangerous or deadly weapon’, as the term is used in the law [of § 211a] means any weapon, instrument, or object that is capable of being used to inflict great bodily injury . . . .” The succeeding instruction, CALJIC No. 9.13 (3d ed. 1970), relying on Raleigh, supra, and Graham, supra, instructed the jury inter alia that: “A weapon such as a gun, dirk or blackjack may be said as a matter of law to be a dangerous or deadly weapon.”

And that is exactly how the prosecuting attorney in this case viewed the law of former section 211a. Although not authority for its meaning, it provides anecdotal evidence consistent with the case law and the CALJIC instructions. He told the jury: “In order to come within [§ 667.7] we have to show . . . that he was convicted of a robbery in 1966 involving the use of a firearm, or a deadly weapon. I believe, is the terminology, involving the use of a firearm or a deadly weapon or firearm.” He also told them: “With regard to . . . 667(a) .... There [are] two kinds of robbery. One is what we call strongarm robbery. Where they just come up and physically take something from somebody. The other is using a deadly weapon, either a gun or a knife and coming up and saying, ‘Give me your money.’ Classic armed robbery.”

None of this is addressed in the majority opinion. Their sole reliance, as noted, is upon People v. Raner, supra. In Raner the defendants were charged, in a manner parallel to this case, “with the crime of robbery while armed with a deadly weapon, to wit, a sawed-off .22 caliber rifle.” (86 Cal.App.2d at pp. 108-109.) They “pleaded guilty to the charge of robbery but denied having been armed, and waived a jury trial on that issue.” ( 86 Cal.App.2d at p. 109 , italics added.) “At the close of the hearing ... on the applications for probation and for the purpose of fixing the degree of the crime, the trial judge found that defendants had been ‘armed with a deadly weapon to wit an unloaded pistol at the time of the commission of the offense.’ ” {Ibid.) The court determined the offense to be robbery of the first degree and denied probation solely on the ground of section 1203, which prohibited probation when “armed with a deadly weapon.”

On appeal the court did distinguish between “unloaded guns as deadly weapons and as merely dangerous weapons,” the former being the case only when the gun “was used or threatened to be used as a bludgeon.” {Raner, *473 86 Cal.App.2d at p. 113 .) However, this distinction proved to be of significance only with respect to the granting of probation under section 1203. As the court said of the conviction: “ ‘To fix it as of the first degree, it is not necessary that the weapon should be a deadly weapon, if, in fact, it is a “dangerous” weapon. (Pen. Code, §21 la.) Robbery committed with an unloaded pistol may be robbery of the first degree.’ ” ( 86 Cal.App.2d at p. 112 ; quoting from People v. Coleman (1942) 53 Cal.App.2d 18, 28 [ 127 P.2d 309 ].)

Thus Raner essentially has to do with eligibility for probation. “We reach the conclusion, therefore, that for the purposes of sections 211a and 1203, . . . the defendants were armed with a dangerous weapon but not with a deadly weapon. The trial court’s determination that the offense was robbery in the first degree was therefore correct (Pen. Code, § 21 la), although based upon the erroneous premise that defendants were armed with a deadly weapon. [But] Defendants were in no way prejudiced by this error . . . and we do not understand either of them to seriously argue that it is ground for reversal of the judgment. On the other hand, the court’s conclusion that under section 1203 it was powerless to grant probation was not only erroneous, since the prohibitory provisions of that section are applicable only where the defendant was armed with a deadly weapon, but . . . deprived defendants of the substantial right,... to have their applications for probation considered and determined by the court in the exercise of its legal discretion.” ( 86 Cal.App.2d at p. 113 .) For these reasons the court affirmed the judgment of conviction but reversed the judgment of sentence. {Id. at P- H4.)

The flaw in the majority reasoning is that if the Raner conviction were at issue in this case and the sole evidence tendered were the record of the charge and conviction in that case we could not conclude that the gun employed was loaded. The majority opinion does not discuss this anomaly. Rather, it argues that the defendant had an incentive in the 1966 action to litigate whether the pistol was loaded, i.e., whether it was “deadly” or merely “dangerous,” because of the provision of section 1203 that allowed probation in the discretion of the court only in cases where the weapon employed in the robbery was “dangerous.” For that reason, in Raner , although the conviction was affirmed, the judgment of sentence was reversed and the case remanded so that the court could “hear and determine defendants’ . . . applications for probation . . . .” ( 86 Cal.App.2d at p. 114 .)

The majority’s premise is that, based upon Raner , the defendant had an incentive to “litigate” whether he was guilty “as charged” of using a “deadly” weapon because if so “convicted” he would be ineligible for probation. *474 But in Raner the trial court upheld the conviction predicated upon a charge of using a “deadly weapon” although defendants used an unloaded pistol for the reason that it made no difference to a conviction for first degree robbery whether the pistol was loaded or not. But because the gun was not loaded the result in Raner is that the defendants did not “litigate” the nicety of the terminology of the charge in order to pursue eligibility for probation for the reason that they had no incentive so to “litigate.” It was of no consequence to the conviction.

For this reason the question of probation has nothing to do with this case. Eligibility for probation under section 1203 need not be plead and proved. For that reason there is no necessary connection between the charge and eligibility for probation. And a prosecutor would have no incentive to charge the use of a “deadly weapon” for purposes of invoking section 1203. Thus, the issue is not whether the defendant had an incentive to litigate the distinction between a loaded and unloaded gun in the 1966 action for purposes of probation but whether that distinction was embodied in the charge and conviction which constitute the only record before this court. With respect to that question, we are in a posture identical to the Brookins case. “Since in this case the prosecution adduced no facts in the record from which we can determine the [pistol] used by the defendant in the [1966] robbery was loaded (and thus per se deadly) or was used in a lethal manner, we cannot say a deadly weapon was used in the commission of the robbery,” as required by section 667.7. (Brookins, supra, 215 Cal.App.3d at p. 1308 .)

I would reverse the judgment of sentence finding the defendant to be a habitual criminal.

A petition for a rehearing was denied May 13, 1991, and appellant’s petition for review by the Supreme Court was denied August 1, 1991. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.

All references to statutes are to the Penal Code.

Hereafter I use term “loaded weapon” to refer to these disjunctive possibilities.