Brief Bank # B-851 (Re: F 17.15 n10 [Firearms Sentencing: 10 / 20 / Life (PC 12022.53): Ex Post Facto Challenge].)
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Brief Received: May 2000
THE APPLICATION OF THE 1999 VERSION OF SECTION
12022.53 SUBDIVISION (D) TO APPELLANT’S CONVICTION
VIOLATES EX POST FACTO PROTECTIONS
Appellant was convicted of second degree murder and sentenced to 15 years to life on that count. (RT 1050, 1063.) The court also imposed a consecutive term of 25 to life on the discharge of a firearm causing great bodily injury enhancement, alleged pursuant to section 12022.53 subdivision (d). (RT 1063.) The subject events occurred on October 25, 1998. (RT 515.) However, the trial court instructed the jury regarding the section 12022.53 subdivision (d) enhancement with a significant provision that was not operative within the terms of that statute until January 1, 1999. As such, appellant contends that the imposition of the enhancement pursuant to this section violates the ex post facto provisions of the state and federal constitutions. (United States Constitution, article 1, section 10; California Constitution, article 1, section 9.)
Section 12022.53 was added to the Penal Code in 1997. The statute is known as the “Sandy Peters Memorial Act” and is more commonly referred to as the “10-20-Life” enhancement. (See Stats. 1197, ch. 503, §2.) The Act was so designated because it creates a hierarchy of punishment based on the nature of the use of a firearm in certain specified felonies. Upon conviction of a qualifying felony, the defendant is subject to an additional, consecutive term of 10 years if he or she personally used a firearm; an additional and consecutive term of 20 years if he or she personally and intentionally discharged the firearm in the commission of the felony; and an additional and consecutive term of 25 years to life if the defendant intentionally and personally discharged a firearm and thereby caused great bodily injury, as defined insection 12022.7. The current crime was committed on October 25,1998. (RTS15.) The applicable statute then in effect provided, in relevant part:
Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), [murder is listed] …, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which, shall be imposed in addition and consecutive to the punishment prescribed for that felony. (§ 12022.53 subd. (d); Added by Stats. 1997, c. 503 (A.H.4), § 3 [emphasis added].)
Section 12022.53 subdivision (d) was amended in 1998 as follows [change is in italics]:
Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), [murder is listed]…, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony. (Amended by Stats. 1998, c. 925 (A.B. 1290), §5; Stats. 1998, c. 936 (A.B. 105), §19, eff. Sept. 28, 1998; Stats 1998, c. 936 (A.B. 105), §19.5, eff. Sept. 28, 1998, operative Jan. 1, 1999.)
Although the pertinent legislative addition was enacted prior to the commission of the subject offense, its terms were not operative until January 1, 1999. Thus the “or death” provision was not operative on the date of the subject crime. “‘An enactment is a law on its effective date only in the sense that it cannot be changed except by legislative process; the rights of individuals under its provisions are not substantially affected until the provision operates as law.’ (People v. Henderson (1980) 107 Cal.App. 3d 475, 488 [T]he courts have recognized the power of the Legislature to establish an operative date later than the effective date …. [Citation.]” (Estate of Martin (1983) 150 Cal.App.3d 1, 3-4.) “`[T]he power to enact laws includes the power to fix a future date on which the act will become operative. [Citations.]’ [Citation.]” (Johnston v. Alexis (1984) 153 Cal.App.3d 33, 40; See also, People v. Camba (1996) 50 Cal.App.4th 857.)
Despite the fact that this revised section was not operative until more than two months after the subject crime was committed the trial court instructed the jury as follows:
It is alleged in count one that during the commission of the crime charged, the defendant intentionally discharged a firearm and approximately (sic) caused great bodily injury to a person who was not an accomplice within the provision of Penal Code section 12022.53 subdivision (d).
If you find the defendant guilty of the crime charged you must determine whether the defendant intentionally and personally discharged a firearm and approximately (sic) caused great bodily injury to a person, who was not an accomplice to the crime.
The word “firearm” includes a semi-automatic pistol. The term “intentionally” and “personally discharged a firearm” as used in this instruction means that the defendant must have intentionally fired a firearm.
The term “great bodily injury” as used in this instruction includes death. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. Include a special finding on that question in your verdict using a form that will be supplied for that purpose. (RT 986; [emphasis added].)
Appellant contends that the instruction enlarged the definition of great bodily injury so as to include the addition of “or death” that was not contained in the statute as operative on the date of the instant offense. As such, the instruction allowed the jury to apply an amended enhancement retroactively, in violation of well established ex post facto principles.
B. Ex Post Facto Principles Precludes An In-uease In Punishment For Conduct PrecedinR The New Law
The ex post facto clause prohibits legislation which (1) punishes as a crime an act previously committed, which was innocent when done; (2) makes more burdensome the punishment for a crime after its commission; or (3) deprives one charged with crime of any defense available according to law at the time when the act was committed. (United States Constitution, article I, section 10; Collins v. Youngblood (1990) 497 U.S. 37; California Constitution, article I, section 9; People v. McVickers (1992) 4 Cal.4th 8 1.) The California Supreme Court has held that the protection of the ex post facto clause of the California Constitution is coextensive with and is to be analyzed identically to the federal constitutional prohibition. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 296.) However, “[t]he ex post facto clauses of the federal and state Constitutions prohibit retrospective laws … increasing the punishment prescribed for a crime at the time it was committed…. (People v. Juarez (1986) 184 Cal.App.3d 570, 575.)
There is a long-standing presumption in both federal and California constitutional jurisprudence that new non decisional law operates prospectively only. (United States v. Security Industrial Bank (1987) 459 U.S. 70, 79; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1205; see also section 3, no part of the Penal Code is retroactive “unless expressly so declared.”) Prospective operation means that the measure in question applies only to conduct or conditions that arise on or after the effective date of the legislation. (Russell v. Superior Court (1986) 185 Cal.App. 3d 8 10, 814.) The presumption of prospective operation is not only based upon the ex post facto clause, but upon policy considerations of fairness and due process. “Retroactive laws are generally disfavored because the parties affected have no notice of the new law affecting past conduct. Such laws disturb feelings of security in past transactions.” (Id. at p. 814.)
In the present case, the court’s instruction enlarged the scope of the enhancement statute because the operative statute at the time of the instant crime only applied to great bodily injury as defined by section 12022.7. [Footnote 1] Section 12022.7 by its terms and the interpretation of such terms by case law preclude application of a great bodily injury enhancement finding to murders or manslaughters. Section 12022.7 specifically precludes imposition of that enhancement if “infliction of great bodily injury is an element of the offense” of which the defendant is convicted. (See also People v. Pitts (1990) 223 Cal.App.3d 1547, 1559; People v. Parrish (1985) 170 Cal.App.3d 336, 344.) Murder and manslaughter, two of the four exempted crimes listed in the third paragraph of section 12022.7, will always include great bodily injury. (Cf. Pitts, supra, 223 Cal.App.3d at p. 1559.) It is obvious that the offense of murder involves the ultimate in infliction of great bodily injury. (People v. Wells (1983) 149 Cal.App.3d 497.)
There is no question that a 25 to life term per count is undeniably an increase in punishment from a 15 to life sentence. Even if the government had alleged other personal firearm enhancements, the punishment would have been nowhere near as severe. “Commonly understood definitions of punishment are
intuitive: there is little dispute that additional jail time or extra fines are punishment.” (People v. McVickers, supra, 4 Cal.4th 84; See, also Weaver v. Graham (1981) 450 U.S. 24, 33-34 [67 L.Ed.2d 17, 25-26, 101 S.Ct. 960]
Accordingly the 25 to life term imposed under the
enhancement should be stricken. The government did not allege or seek a finding on a firearm enhancement pursuant to section 12022.5 or other, possibly applicable sections. As such remand is not necessary for imposition of a term under another section.
Footnote 1: Section 12022.7 provides in relevant part: (a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he or she is convicted…
…(f) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact….
Brief Received at FORECITE: May 2000