Here we are called upon to apply two related but distinct concepts: (1) the rule prohibiting multiple convictions based on greater and necessarily included offenses, and (2) Penal Code section 654's prohibition against multiple punishments when "[a]n act ... is punishable in different ways by different provisions of law ...."
Officers conducting a parole search of defendant's residence discovered two operable shotguns and ammunition. Defendant was charged with two counts of possessing a firearm after conviction of a felony under section 12021(a)(1) (offender in possession), based on felony convictions for making criminal threats (§ 422), discharging a firearm with gross negligence (§ 246.3), and kidnapping (§ 207). Based on the same convictions he was also charged with two counts under section 12021.1(a), alleging gun possession by
Defendant was also charged with various enhancements based on his prior felony convictions. He waived his right to a jury trial on the enhancements, and the trial court found he had suffered four prior convictions that qualified him for sentencing under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served three prior prison terms (§ 667.5, subd. (b)). It sentenced him to two concurrent terms of 25 years to life for his offender in possession counts under section 12021(a)(1). It imposed terms of 25 years to life for his violent offender in possession counts under section 12021.1(a), but stayed execution of those terms under section 654. Finally, it struck punishment for the three prior prison terms pursuant to section 1385.
On appeal, defendant argued, and the Attorney General conceded, that violent offender in possession under section 12021.1(a) is a necessarily included offense of offender in possession under section 12021(a)(1). The Court of Appeal accepted the Attorney General's concession and reversed defendant's section 12021.1(a) convictions. The Court of Appeal also stayed defendant's concurrent sentence on the second section 12021(a)(1) conviction under section 654.
We denied defendant's petition for review challenging the sufficiency of the evidence. On our own motion, we ordered review limited to the following issues: "(1) Is possession of a firearm after conviction of a specified violent offense (Pen. Code § 12021.1, subd. (a)) a necessarily included offense of possession of a firearm after conviction of a felony (Pen. Code § 12021, subd. (a)(1))?" and "(2) Was defendant properly sentenced to concurrent terms for his simultaneous possession of two firearms in violation of Penal Code section 12021, subdivision (a)(1)?"
When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763]; accord, People v. Milward (2011) 52 Cal.4th 580, 589 [129 Cal.Rptr.3d 145, 257 P.3d 748]; People v. Medina (2007) 41 Cal.4th 685, 701-702 [61 Cal.Rptr.3d 677, 161 P.3d 187].) If neither offense is necessarily included in the other, the defendant may be convicted of both, "even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct." (People v. Ortega, supra, 19 Cal.4th 686, 693.)
As noted, defendant was convicted on two counts of offender in possession (§ 12021(a)(1)) and two counts of violent offender in possession (§ 12021.1(a)) based on his simultaneous possession of two firearms. In light of the Attorney General's concession below, the Court of Appeal held that section 12021.1(a) is a necessarily included offense of section 12021(a)(1) and reversed defendant's convictions on counts two and four.
In this court, defendant and the Attorney General agree that the rule against multiple convictions based on necessarily included offenses bars separate convictions under both sections for possession of the same gun. They disagree, however, about which offense is necessarily included in the other. Defendant argues that "section 12021, subdivision (a)(1), which applies to any felony conviction, is the `greater' offense, because by definition it includes all of the enumerated felonies in section 12021.1, subdivision (a)." Thus, he argues, violent offender in possession is a "lesser included" offense of offender in possession. Conversely, the Attorney General argues that offender in possession (§ 12021(a)(1)) is a necessarily included offense of violent offender in possession (§ 12021.1(a)) because a person who possesses
"In deciding whether multiple conviction is proper, a court should consider only the statutory elements." (People v. Reed (2006) 38 Cal.4th 1224, 1229 [45 Cal.Rptr.3d 353, 137 P.3d 184].) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) In other words, "`[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.'" (Ibid., quoting People v. Lopez (1998) 19 Cal.4th 282, 288 [79 Cal.Rptr.2d 195, 965 P.2d 713].)
Section 12021(a)(1) prohibited possession of a firearm by a person convicted of (1) any felony or (2) an offense "enumerated in subdivision (a), (b), or (d) of [former] Section 12001.6," or (3) by a person addicted to a narcotic drug.
On the other hand, section 12021.1(a) prohibited firearm possession by anyone who had been convicted of an enumerated "violent offense." (See
Comparing these statutory elements, violent offender in possession (§ 12021.1(a)) is not a necessarily included offense of offender in possession (§ 12021(a)(1)). It was possible to violate section 12021(a)(1) without necessarily violating section 12021.1(a). For example, a person could have violated section 12021(a)(1) by possessing a firearm after having been convicted of any felony not included in the list of violent offenses under section 12021.1(b), or by possessing a firearm while addicted to a narcotic drug. (See People v. Sanchez (1989) 211 Cal.App.3d 477, 483 [259 Cal.Rptr. 294] [rejecting the argument that §§ 12021.1 and 12021 apply to the "same group of individuals" because the latter section applies to a person who is addicted to the use of narcotics or who has been convicted of a felony "regardless of whether the felony is a violent offense" (italics added, fn. omitted)].)
Defendant urges us to consider the "factual situation presented in this case," namely that defendant's prior conviction was in fact included in the list of violent offenses under section 12021.1, in order to conclude that violent offender in possession (§ 12021.1) is a necessarily included offense of offender in possession (§ 12021(a)(1)). He reasons that, on the record here, he stands convicted of a qualifying felony under both statutes. He then maintains that section 12021(a)(1) is thus the greater offense in the sense that it is the broader offense: it applied to any felony conviction, including all of the enumerated felonies in section 12021.1(b).
In the abstract, a person could have violated section 12021(a)(1) without violating section 12021.1(a). Accordingly, section 12021.1(a) is not an offense necessarily included within section 12021(a)(1).
The Attorney General takes a different, but equally flawed, position: that the broader section 12021(a)(1) prohibiting offender in possession is a necessarily included offense of the more specific section 12021.1(a) prohibiting violent offender in possession. She posits that any person who possessed
We can identify at least one circumstance in which a person could have violated the more narrow section 12021.1(a) without necessarily having violated section 12021(a)(1). Section 12021.1 applied upon conviction of certain "violent offense[s]," not just violent felonies. (§ 12021.1(b), now § 29905, italics added; People v. Sanchez, supra, 211 Cal.App.3d at pp. 481-483 [rejecting an argument that § 12021.1(a) applied only to violent felony convictions]; see 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 238, p. 942 ["A felony conviction is not required to invoke the prohibition [of section 12021.1(a)]; it is only necessary that the underlying conviction be for a `violent offense' specified in the statute."].) As noted, several of the "violent offense[s]" set out in former section 12021.1(b) are either wobblers or straight misdemeanors. (See § 12021.1(b)(24), (27) & (29).) The Attorney General's argument that a person falling under section 12021.1(b) "would have necessarily committed a felony" under section 12021(a)(1) is simply inaccurate. Moreover, although the two statutes overlap in their inclusion of several wobbler or misdemeanor offenses,
Consequently, a person convicted of a misdemeanor violation of section 245, subdivision (a)(1) would be barred from possessing a firearm under section 12021.1(a), while he or she would not be barred from possessing a firearm under section 12021(a)(1). (People v. Sanchez, supra, 211 Cal.App.3d at pp. 481-483 [§ 12021.1(a) applied to a misdemeanor violation of § 245, subd. (a)(1)].) It follows that offender in possession (§ 12021(a)(1)) is not a necessarily included offense of violent offender in possession (§ 12021.1(a)) because a person could have violated section 12021.1(a) without necessarily violating section 12021(a)(1). (Cf. People v. Williams (2009) 170 Cal.App.4th 587, 643-644 [88 Cal.Rptr.3d 401] [possession of specified controlled substances (Health & Saf. Code, § 11377, subd. (a)) is not a necessarily included offense of possession of different list of controlled substances while armed (Health & Saf. Code, § 11370.1, subd. (a)) because the list of controlled substances in each statute is not coextensive]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166 [282 Cal.Rptr. 228] [possession of a sawed-off shotgun (former § 12020, subd. (a), now § 33215) is not a necessarily included offense of possession of a firearm by a person convicted of a violent offense (former § 12021.1(a))].)
The trial court sentenced defendant to concurrent terms of 25 years to life for his two convictions for offender in possession under section 12021(a)(1). The Court of Appeal stayed one of the concurrent sentences pursuant to section 654 for lack of evidence that defendant harbored a separate intent or objective in possessing the two firearms. Our recent precedent compels the opposite result.
Correa, like defendant here, was convicted of multiple counts of offender in possession (§ 12021(a)(1)), based on his simultaneous possession of a cache of weapons. In that case, we announced, as a new rule, that section 654 does not bar multiple punishments for violations of the same provision of law. We held further that this new rule could not apply retroactively to Correa under the protections of the ex post facto clause. (Correa, supra, 54 Cal.4th at pp. 334, 344-345.)
Likewise here. Defendant's two convictions for violating section 12021(a)(1), based on his simultaneous possession of two firearms, are exempt from section 654's application because the Legislature intended that the possession of "each firearm ... shall constitute a distinct and separate offense ..." under that statute. (§ 12001, subd. (k).) The same is true of defendant's two convictions for violating section 12021.1(a). (§ 12001, subd. (k).) Applying this rule, which has been in existence since the 1994 amendment to section 12001, raises no ex post facto concerns.
The question remains which of defendant's sentences must be stayed. The trial court sentenced defendant on his prior conviction possessions (§ 12021(a)(1)), and stayed execution of sentence on his violent conviction possessions (§ 12021.1(a)). We conclude that the plain language of section 654 and section 12021.1(a) compel the opposite result.
As relevant, 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." (Italics added; see People v. Kramer (2002) 29 Cal.4th 720, 722-725 [128 Cal.Rptr.2d 407, 59 P.3d 738] [construing the term "longest potential term of imprisonment" in § 654].)
The punishment for violating section 12021(a)(1) was 16 months, two, or three years. (§§ 18, 12021(a)(1), now § 29800, subd. (a)(1).) The punishment for violating section 12021.1(a) was likewise 16 months, two, or three years. (§§ 18, 12021.1(a), now § 29900, subd. (a)(1).) Section 12021.1(a) additionally provided, however, that "[i]f probation is granted, or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the defendant serve at least six months in a county jail" except in unusual cases where the interests of justice warrant no jail time. (See § 12021.1, subd. (d).) Accordingly, section 12021.1(a) provided for the longest potential term of imprisonment, at least where a grant of probation was involved, because it imposed a mandatory minimum jail term in that circumstance. (See § 2900.5, subd. (c) [defining "term of imprisonment" to include "any period of imprisonment imposed as a condition of probation"].)
Sentencing defendant under section 12021.1(a) is also consistent with the statute's express mandate that it was to apply "[n]otwithstanding subdivision (a) of Section 12021 ...." As previously noted, the phrase "notwithstanding" signals the Legislature's intent to have the statute apply without prevention or obstruction by section 12021(a)(1). (See People v. Palacios, supra, 41 Cal.4th at pp. 728-729.) It would have contravened legislative intent to stay execution of sentence on a section 12021.1(a) conviction in favor of imposing
Accordingly, we hold that defendant may be separately punished for two violations of section 12021(a)(1) and of section 12021.1(a) based on his simultaneous possession of two firearms. The Court of Appeal erred in concluding otherwise. However, we also hold that defendant may not be separately punished for violations of sections 12021(a)(1) and 12021.1(a) based on possession of the same firearm. While the trial court correctly recognized this point, it incorrectly stayed execution of sentence on the wrong offenses (§ 12021.1(a)).
We reverse the judgment of the Court of Appeal insofar as it reversed defendant's convictions on counts two and four, vacated the sentences on those counts, and ordered that the sentence on count three be stayed. In all other respects, we affirm the Court of Appeal judgment. We remand the matter to that court for further proceedings consistent with our opinion.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
The doctrine of lesser included offenses is, at its core, a doctrine about legislative intent. It "is part of the constitutional guarantee against double jeopardy." (People v. Smith (1950) 36 Cal.2d 444, 448 [224 P.2d 719]; see People v. Kehoe (1949) 33 Cal.2d 711, 713 [204 P.2d 321].) "[O]nce a conviction on the lesser offense has been obtained, `"to ... convict of the greater would be to convict twice of the lesser."' [Citations.]" (People v. Fields (1996) 13 Cal.4th 289, 306 [52 Cal.Rptr.2d 282, 914 P.2d 832].) Importantly, double jeopardy principles do not bar a legislature from authorizing multiple convictions and multiple punishments for necessarily included offenses. (Garrett v. United States (1985) 471 U.S. 773, 779 [85 L.Ed.2d 764, 105 S.Ct. 2407]; Brown v. Ohio (1977) 432 U.S. 161, 165 [53 L.Ed.2d 187, 97 S.Ct. 2221].) Instead, the rule against multiple convictions of necessarily included offenses is a judicially created doctrine premised on the notion that the legislature "ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the `same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." (Whalen v. United States (1980) 445 U.S. 684, 692 [63 L.Ed.2d 715, 100 S.Ct. 1432].)
I agree with the court's application of People v. Correa (2012) 54 Cal.4th 331 [142 Cal.Rptr.3d 546, 278 P.3d 809] and People v. Jones (2012) 54 Cal.4th 350 [142 Cal.Rptr.3d 561, 278 P.3d 821] to hold that defendant may be punished separately for two violations of section 12021(a)(1) and of section 12021.1(a) based on his simultaneous possession of two firearms, but that defendant may not be punished separately for violations of sections 12021(a)(1) and 12021.1(a) based on possession of the same firearm.
Former section 12001.6 was repealed operative January 1, 2012, but its provisions were continued without substantive change and renumbered as section 23515. We will refer to this provision as section 12001.6. As relevant here, section 12001.6 described offenses involving "the violent use of a firearm," including assaults with a firearm in violation of section 245, subdivision (a)(2), (3) or (d) (§ 12001.6, subd. (a)); shooting at an inhabited dwelling in violation of section 246 (§ 12001.6, subd. (b)); and brandishing a firearm in the presence of a peace officer in violation of section 417, subdivision (c) (§ 12001.6, subd. (d)).
On the element of drug addiction, see People v. Washington (1965) 237 Cal.App.2d 59, 65-68 [46 Cal.Rptr. 545].
Neither party invites us to consider subdivision (c)(1) of section 12021 for purposes of applying the rule against multiple convictions for necessarily included offenses. Accordingly, we need not decide whether section 12021(a)(1) should be considered in isolation or together with subdivision (c)(1) of that section as constituting one crime. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; id. at p. 170, fn. 19; see generally People v. Ortega, supra, 19 Cal.4th at pp. 694-699 [the traditional crime of theft includes both petty theft and grand theft]; People v. Ryan (2006) 138 Cal.App.4th 360, 364 [41 Cal.Rptr.3d 277] [when the Legislature divided § 470, defining the traditional crime of forgery, into subdivisions, it described "different ways of committing a single offense, i.e., forgery"].)
