PEOPLE v. CORREAAppellant’s Supplemental Letter BriefCal.November 29, 2010r aCO ORIGINALQ Xtseno LAW OFFICE OF CONRAD PETERMANN A PROFESSIONAL CORPORATION (805) 646-9022 . 323 East Matilija Street FAX: (805) 646-8250 Suite 110, PMB 142 E-Mail: Firm@CPetermann.com Ojai, CA 93023 Website: www.CPetermann.com SUPREME COURT November 23, 2010 FILED Frederick K. Ohlrich NOV 29 20i¢ Clerk of the Supreme Court Supreme Court of California Frederick K. Ohirich Clerk 350 McAllister Street 4a> San Francisco, CA 94102-4797 Deputy Re: The People of the State of California v. Victor Correa., Case Number $163273 Dear Mr. Ohlrich: On October 13, 2010, this Court asked counsel to brief three specified questions regarding the continued application of the current interpretation of the reach of Penal Code’ section 654. Respondent, in its Supplemental Letter Brief of November 12, 2010, asserts that the answerto the first two of these questions is “No,” and to the third it is “Yes.” Not surprisingly, appellant finds that the opposite response is far more compelling. And,as to the third question, appellant adds, but if the answeris yes, and this Court adopts a changein the interpretation of section 654, then that change cannot apply to appellant. RECEIVED NOV 29 2010 CLERK SUPREME COURT 1 All references are to this Code unless otherwise noted. C) Frederick K. Ohlrich Clerk of the Supreme Court Page |2 A. The Court’s First Question Appellant’s responseto this first question also provides the background to appellant’s response to the second and third questions. Supportfor each response is found in a compelling source, the Legislative history of section 654. We begin in 1872, when Penal Codesection 654 was enacted. “It is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature’s purpose at the time of the enactment. (See People v. Harvey (1980) 112 Cal.App.3d 132, 138-139 [169 Cal.Rptr. 153].)” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.) In 1872 the section provided in pertinentpart: An act or omission which is made punishable in different ways by different provisions of this Code may be punished undereither of such provisions, but in no case can it be punished under more than one; ..... (Emphasis added.) Thetask before this Court is easily stated, what is meant by “act or omission” and “provisions” within the meaning of section 654? Whena phrase is accorded a particular meaning in onepartofa law,it should be accorded the same meaning in other parts of the samelaw. (California Teachers Assn. v. Governing Bd. Of Rialto Unified Sch. Dist. (1997) 14 Cal.4th 627, 643; see also Dept. of Revenue v. ACF Industries, Inc. (1994) 510 U.S. 332, 342 [114 S.Ct. 843, 127 L-Ed.2d 165] [“normal rule of statutory construction’ [is] that ‘“ identical words used in different parts of the same act are intended to have the same ddd) meaning,” (citations)].) In 1872, section 656 was also enacted and used these terms that are the objects of this Court’s questions. Section 656 provided: Frederick K. Ohlrich Clerk of the Supreme Court Page |3 Wheneveronthetrial of an accused personit appears that upon a criminal prosecution-underthe laws of another State, Government, or country, founded upon the act or omission in respect to which heis ontrial, he has been acquitted or convicted,it is a sufficient defense. (Emphasis added.) In the Commissioners’ Notes to the Penal Code of 1872, is the following notation, with original emphasis: This section is intended to apply in cases where the foreign acquittal or conviction took place in respect to the particular act or omission charged against the accused upon the trial in this State, and is not restricted to cases where the accused was tried abroad under the same charge. (The Penal Code, Annotated by Creed Haymond and John C. Burch,of the California Code Commission (1872 1* Ed.), p. 241.) Thus, the phrase “act or omission” in section 654, as that in section 656, is meant to identify the action to be punished regardless of how it may be labeled or what statute it mightfall into. Therefore, the effect of “provision” in section 654 should notbe limited solely to disparate substantive offenses but it should be interpreted to apply to any provision from which a punishment may emanate. Theprovisions of section 654 that are the focus of the Court’s questions have undergone miniscule change in the 138 year history of the application of the section. In 1976 the section was amended, but made no substantive changesto the pertinent part of the section under scrutiny here.’ That part remained: An act or omission which is made punishable in different ways by different provisions of this code may be punished undereither of such provisions, but in no case can it be punished under more than one; ..... [Emphasis added.] (Stats. 1976, c. 1139, p. 5137, § 264.) A single non-substantive change un-capitalized the word “code.” C) Frederick K. Ohlrich Clerk of the Supreme Court Page | 4 In 1977 the section underwent another amendment, but with no change to the provisions that are the focus here. In pertinent partit provided: Anact or omission which is made punishable in different ways by different provisions of this code may be punished undereither of such provisions, but in no case can it be punished under more than one;... [Emphasis added.] (Stats. 1977, c. 165, p. 644, § 11.) In 1997, the section underwentits final change. It now provides in pertinent part: (a) 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. [Emphasis added.] (Stats. 1997, c. 410 (S.B. 914), p. 95, § 1.) This amendmentreflects a Legislative recognition that criminal sanctions can be found in codes in addition to the Penal Code? and a legislative will to impose the longest sentence of the applicable provisions. Over the 88 years since the section’s passage and this Court’s decision in Neal v. State of California (1960) 55 Cal.2d 11, California’s courts, as evidenced by their decisions, have routinely been focused on the “act or omission” and not on whetherthe provisions were the same or not in deciding whether a defendant could suffer multiple punishments. (See, e.g., People v. Shotwell (1865) 27 Cal. 394, 400 [wherein the court observed, “setting up a gamingtable, it has been said, may be an entire offense; keeping a gaming table and inducing others to bet uponit, may also constitute a distinct offense; for either, 3 For example, in 1872 there was no Vehicle Code, Welfare and Institutions Code,etc. O Frederick K. Ohlrich Clerk of the Supreme Court Page |5 unconnected with the other, an indictment will lie. Yet, when both are perpetrated by the same person,at the sametime, they constitute but one offense, for which one countis sufficient, and for which but one penalty can beinflicted’ [citation omitted];” People v. Clemett (1929) 208 Cal. 142 [improper to convict defendant of two counts of the sameact relating to stills and other devices for the manufacture or production of intoxicating liquor for beverage purposes where one count was premised upon possession ofthe still and the other upon operating the still]; People v. Nor Woods (1951) 37 Cal.2d 584, 586-587 [both the car and the money were taken at the sametimeas partofa single transaction wherebythe defendant defrauded the victim of the purchase price ofcar]; People v. Roberts (1953) 40 Cal.2d 483, 491 [the defendanttransported, furnished, and possessed heroin, each a violation of section 11500 of the Health and Safety Code; the three acts are charged and adjudged as separate crimes; however, “‘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 beinflicted” [citation omitted].) As noted in this Court’s order for supplemental briefing, three of the above authorities were cited by this Court in Neal v. State of California (Roberts, Clemett, and Nor Woods) in footnote 1. In Neal the Court was addressing the petitioner’s convictions for arson and attempted murderthe result of him throwing gasoline into the bedroom ofthe victims andigniting it. Of course, arson and attempted murderdid not involve the same offense. But, the Court was focused on the act: “‘It is the singleness of the act and notof the offense thatis determinative.” Citing People v. Knowles 35 Cal.2d 175, 187. (Neal v. State of California, supra, at p. 19.) This statement was madein the O Frederick K. Ohlrich Clerk of the Supreme Court Pave |6 context of footnote 1 in Neal now underscrutiny here. That footnote provided: FN1 Althoughsection 654 does not expressly preclude double punishment whenanactgives rise to more than oneviolation of the same Penal Codesection or to multiple violations of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishmentin such cases also. People v. Brown, 49 Cal.2d 577, 591, 320 P.2d 5; see People v. Roberts, 40 Cal.2d 483, 491, 254 P.2d 501; People v. Clemett, 208 Cal. 142, 144, 280 P. 681; People v. Nor Woods, 37 Cal.2d 584, 586, 233 P.2d 897. [t can thus be seen, that even though this footnote was not determinative of the outcomein Neal, it did provide an accurate summary of the focus of reviewing courts since the inception ofsection 654: it is the “act or omission” and not on whetherthe provisions were the same or not that determines whether a defendant could suffer multiple punishments. In short, the authority cited in this footnote supports the “the basic principle in such cases.” B. The Court’s Second And Third Questions Since this Court’s decision in Nealv. State of California, California’s courts have maintained that the focus on the “act or omission” of the defendantis essential to resolution of the applicability of section 654. The followingcases illustrate applications ofthis approach whereit has been found that section 654 applies in instances of multiple convictions for the same offense. (See, e.g., People v. Kenefick (2009) 170 Cal.App.4® 114, 125 [multiple counts of forgery with a single victim]; People v. Davey (2005) 133 Cal.App.4® 384, 390- 4 People v. Brown (1958) 49 Cal.2d 577, cited in the footnote, bore facts (a conviction of abortion resulting in the death of a woman and the murder of that woman) analogousto those in Neal. © Frederick K. Ohlrich Clerk of the Supreme Court Page |7 391 [multiple counts of indecent exposure the result of a single act, but multiple victims]; People v. Hall (2000) 83 Cal.App.4" 1084 [multiple counts of exhibiting a firearm in the presence of peace officers the result of a single act]; People v. Hooker (1967) 254 Cal.App.2d 878, 880 [shoplifting a numberof items is only one kind of crime, hence, only one punishable theft]; People v. Wasley (1966) 245 Cal.App.2d 383, 386- 387 [“If possession of the two weaponswere but a single ‘course of conduct’, the double punishmentproscription would apply”]; Witkin, California Criminal Law (3d ed. 2000), Punishment, § 171, p. 241 and supplementthereto, citing In re Johnson (1966) 65 Cal.2d 393 [involving a conviction of two counts of sales of heroin, both occurring within two hours, to the same undercover agent. The agenttold defendant he wantedto try the stuff out, so five spoons were delivered shortly after 9 p.m., and five more at 11 p.m., after the agent had tested it. Held, the two acts of delivery were substantially contemporaneous, and there was only one punishable offense]; In re Adams (1975) 14 Cal.3d 629, 635 [“the principal inquiry is whether defendant entertained a single criminal objective or multiple criminal objectives. Here, defendantsimultaneously transporteda variety ofillegal drugs with the single intent and objective of delivering them to G. “[I[]t would be unreasonable to fragment that single objective into five separate objectives, namely, to transport benzedrine, to transport heroin, to transport seconal, etc. Instead, the entire transaction should reasonably be viewed as constituting an indivisible course of conduct analogousto the theft of severalarticles of personal property which,”... results in the commission of a single punishable offense].) As recently as last year, this Court in People v. Rodriguez (2009) 47 Cal.4" 501, 507 reaffirmed, “Whether a course of criminal conductis © Frederick K. Ohlrich Clerk of the Supreme Court Paue | 8 divisible and therefore gives rise to more than oneact within the meaning of section 654 dependsontheintent and objective of the actor.” Focus on the acts or omissions of the actor that make up a course of criminal conduct does not mean thatall repeated offenses are treated the same. Those acts committed at significantly different times are not governedbysection 654. (See e.g., People v. Von Latta (1968) 258 Cal.App.2d 329, 339 [“defendant possessed marijuana in his garage in the morning, then later in the day had marijuana in a neighboring town in the same county. Held, this constituted two distinct acts of possession at different times and places, and separate convictions were proper”); In re Noelle M. (2008) 169 Cal.App.4* 193, 195 [five counts of sale of methadoneto five separate persons during course of football game did not constitute indivisible transaction; consecutive sentences were proper]; People v. Davis (2002) 102 Cal.App.4® 377, 381 [sex offender registration law, occurs each time person whois required to register enters jurisdiction andfails to register].) So too, repeated violations of the same sex offense with the same victim, even though occurring in a single event, are of a different kin because of the significant impact each offense has on the victim. (People v. Harrison (1989) 48 Cal.3d 321, 332 [“Multiple violations... are no less separate or offensive when they occur in sequence than when they are punctuatedby violations of other statutes”].) Also illustrative are cases where injury has been inflicted to a victim. (See, e.g., People v. Johnson (2007) 150 Cal.App.4™ 1467, 1474 [defendant mayreceive multiple convictions for corporal injury to cohabitant where convictions are based on multiple injuries, even though they are inflicted during single course of conduct].) Frederick K. Ohlrich Clerk of the Supreme Court Page |9 From the above it can be seen that over the course of 138 years of application of section 654, reviewing courts have ably sorted out a methodology for resolving when section 654 should apply and when section 654 not apply. Thelegislative history of section 654 supports the view that the Legislature too has concluded that the Neal Court’s interpretation of the statute accurately reflects the Legislature’s intent. “The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citations]” ... “When the language is susceptible of more than one reasonable interpretation, ... we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,thelegislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which thestatute is a part.” [Citations] (People v. Jefferson (1999) 21 Cal.4th 86, 94.) The Legislature is deemed to be aware of existing law and judicial decisions. (People v. Cruz (1996) 13 Cal.4th 764, 775 [We presumethatthe legislators were aware of the law of burglary in enacting section 1192.7(c)(18), and of judicial decisions interpreting the language they chose to employ]; In re Harris (1989) 49 Cal.3d 131, 136 [Generally, the drafters who frameaninitiative statute and the voters who enact it may be deemedto be aware ofthe judicial construction of the law that served as its source]; People v. Overstreet (1986) 42 Cal.3d 891, 897 [In addition, the Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amendedstatutes in the light of such decisions as have a direct bearing upon them.]) Thus, the Legislature is deemed to be aware of this Court’s decision and interpretation of section 654 in 1960 in Neal v. State of Frederick K. Ohlrich Clerk of the Supreme Court Page | 10 California, supra and the 88 year history of relevant case law that preceded thejudicial decision in Neal v. State of California. As discussed in Part A, above, the Legislature made changes to the section in 1976, 1977, and 1997. Again, they are deemed aware of the consistent application of footnote | in Neal by the reviewing courts of this state. Had the Legislature not been content with the scope of section 654 as defined by statute and the interpretation of the section by the courts of this state, they surely would have addressed the issue whenthey made the changes that they did in 1976, 1977, and 1997. But they did not. They left the applicable portion of the section exactly the way it had always been. Respondenthas not addressed this issue. Respondent has reached their position by ignoring the 138 year history of the application of section 654. Respondenthas offered not a single reason whythis course should now be changed. Respondenthas not suggested why after 138 years of experience by this state’s reviewing courts resolving whethera course of criminal conductis divisible should now arbitrarily exclude from consideration those cases where there are multiple violations of the same statutory provisions. The purpose of section 654 is to ensure that a defendant’s punishmentwill be commensurate with his culpability. (People v. Kramer (2002) 29 Cal.4720, 723.) Whether a course of conductis a divisible transaction depends on the intent and objective of the actor and the determination of whether there was more than one objectiveis a factual one. (People v. Rodriguez (2009) 47 Cal.4501, 507; People wv. Saffle (1992) 4 Cal.App.4" 434, 438.) In Mr. Correa’s case, there is no evidence that possession of the firearms was incidentto but a single objective. O Frederick K. Ohlrich Clerk of the Supreme Court Page | 11 C._A Sentence For One Count Will Provide Appellant A Sentence Of 25 Years To Life Respondentexpresses concern that abandoning the 138-year interpretation of section 654 to excludecases like that of appellantwill not ensure that appellant’s punishmentwill be commensurate with his culpability. (Resp. Sup. Letter Brief, p. 11.) Should appellant’s position prevail, his sentence will likely be reduced to a sentence of 25 years to life; a sentence so severe thatit is prescribed for first degree murder. Respondent does not explain how such a sentence could not possibly be commensurate with appellant’s culpability. After a remandfor resentencing, appellant’s punishmentwill be commensuratewith his culpability.’ D. A New Limitation Upon The Application Of Section 654Cannot Be Applied To Appellant If the penumbraofsection 654 is now reducedafter 138 years of application by this states’ courts, any reduction in the protection of section 654 cannot be applied to appellant. Such an application to appellant’s case would violate his federal and state constitutional rights of due process. A criminal statute enacted with a retroactive application is invalid as an ex post facto law if it punishes an act innocent when done, or increases the punishment, or takes away a defenserelated to an element of the crime or an excuseorjustification for the conduct, or alters the rules of evidence so that a conviction may be obtained onless or different testimony than was required whenthe crime was 5 Appellant was sentenced to state prison for 200 years to life—25 years to life for each of the eight counts for which he had been found guilty, each to be served consecutively to the others. (CT 273-274.) a a d + Frederick K. Ohlrich Clerk of the Supreme Court Page | 12 committed. (See Beazell v. Ohio (1925) 269 U.S. 167 [70 L.Ed. 216, 46 S.Ct. 68]; Collins v. Youngblood (1990) 497 U.S. 37 [111 L.Ed.2d 30, 110 S.Ct. 2715]; People v. Frazer (1999) 21 Cal.4" 737.) Ex post facto laws are prohibited by the federal Constitution (Art. I, §§ 9, 10) and the California Constitution (Art. I, § 9). (Witkin, California Criminal Law 1, Nature of Criminal Law, (3°! ed. 2000) § 10, p. 21.) “The California ex post facto provision affords the same protection as the federal provision.” (Id. at p. 23.) However, where the courts make such a changein the law, the Due Process Clause of the Fifth Amendmenthas been violated. The Ex Post Facto Clauseis a limitation upon the powersofthe legislature... and does not of its own force apply to the Judicial Branch of government.... But the principle on whichtheclause is based the notion that persons havea right to fair warning of that 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 Fifth Amendment. [Citations omitted.] (Marks v. United States (1977) 430 U.S. 188, 191-192 [51 L.Ed.2d 260, 97 S.Ct. 990]; accord Clark v. Brown, supra, 442 F.3d 708, 721-722.) “(A)n unforeseeable judicial enlargementof a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, s 10, of the Constitution forbids. ... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Courtis barred by the Due Process Clause from achieving precisely the same result by judicial construction.” (Marks v. United States, supra, at p. 192.) In Parts A and B, above, and incorporated here, for 138 years section 654 has been interpreted to apply to multiple convictions of the same provision of the law. If that interpretation is now changed, such O Frederick K. Ohlrich Clerk of the Supreme Court Page | 13 a changein the law has increased the punishmentfor the acts appellant has been convicted of committing and removed a defense to multiple punishment. Asa result,its first application to appellant is proscribed by the Due Process Clause of the Fifth Amendment. (See Beazellv. Ohio, supra, 269 U.S. 167; Marks v. United States, supra, 430 U.S. 188, 191-192; People v. Welch (1993) 5 Cal.4™ 228, 237-238.) E. Conclusion For the foregoing reasons, appellant’s sentence should be reversed and the case remanded for sentencing. Dated: November 23, 2010. fySincerely, 4 Conrad Petermann Cc > CONRAD PETERMANN CASE NUMBER: S$163273 323 East Matilija Street Suite 110, PMB 142 Ojai, CA 93023 DECLARATION OF SERVICE I, undersigned, say: I am a citizen of the United States, a resident of Ventura County, over 18 years of age, not a party to this action and with the above business address. Onthe date executed below, I served the Appellant’s Supplemental Letter Brief by depositing a copy thereof in a sealed envelope, postage thereon fully prepaid, in the United States Mail at Ojai, California. Said copies were addressed as follows: EdmundG.Brown,Jr. Attorney General P.O. Box 944255 Sacramento, CA 94244 Mr. W. Bradley Holmes Attorney at Law District Attorney 1007 7° Street Attention Mr. Curtis Fiorini Suite 205 Deputy District Attorney Sacramento, CA 95814 901 G Street Sacramento, CA 95814 Mr. Victor Correa F-49524, B4-111 Third Appellate District P.O. Box 3030 (HDSP) 900 N Street, Room 400 Susanville, CA 96130 Sacramento, CA 95814-4869 Central California Appellate Clerk Superior Court For delivery to the 2407|Street Honorable d Suite 301 Patricia C. Esgro, Judge730 Nimth Street Sacramento, CA 95816 Sacramento, CA 95814-1398 I declare under penalty of perjury that the foregoing is true and correct. Executed on November 23, 2010, at Ojai, California. ae Conrad Petermann Attorney for Appellant
