People v. Bradford

A jury convicted defendant of first degree murder (Pen. Code, § 187) 1 and found true special allegations that defendant used a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)) and that defendant had been previously convicted of a “serious felony,” i.e., one in which defendant had personally used a deadly or dangerous weapon. (§§ 667, 1192.7, subd. (c)(23).) Defendant appeals contending: (1) no substantial evidence supports the verdict; (2) the enhancement for the prior “serious felony” was unlawfully found and imposed; (3) his prior “serious felony” conviction is unconstitutional, and (4) his counsel was incompetent.

We conclude defendant had not been previously convicted of a “serious felony” as a matter of law. We therefore set aside the jury’s “serious felony” finding and order the five-year enhancement term stricken. In all other respects, we affirm the judgment.

Facts Related To The Current Offense 2

*535 Discussion

H

As noted, defendant was convicted by the jury of first degree murder (§ 187). The jury also found true an allegation that defendant had been previously convicted of a “serious felony,” to wit, that described in…

I concur in the result.

Paragraph (c), subdivision (23) of Penal Code section 1192.7 is virtually identical to the operative language of paragraph (b) of Penal Code section *545 12022. It is highly unlikely that this precise congruence is coincidental. Rather it manifests an intended interrelationship between the two provisions. Since in appropriate cases personal use of a deadly or dangerous weapon may be charged as an enhancement under section 12022, subdivision (b), the related provision of section 1192.7 may not later be invoked unless such a charge has been made and proven. No such enhancement was charged in conjunction with defendant’s 1976 conviction of felony assault nor could it have been because the prior crime occurred before the enactment of section 12022, subdivision (b), which in any event is facially inapplicable to charges of assault with a deadly weapon.

The petitions of both parties for a hearing by the Supreme Court were denied January 17, 1985. Lucas, J., was of the opinion that the hearing should be granted.

[Opinion certified for partial publication. [*] ]

OPINION

SIMS, J.

A jury convicted defendant of first degree murder (Pen. Code, § 187) [1] and found true special allegations that defendant used a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)) and that defendant had been previously convicted of a "serious felony," i.e., one in which defendant had personally used a deadly or dangerous weapon. (§§ 667, 1192.7, subd. (c)(23).) Defendant appeals contending: (1) no substantial evidence supports the verdict; (2) the enhancement for the prior "serious felony" was unlawfully found and imposed; (3) his prior "serious felony" conviction is unconstitutional, and (4) his counsel was incompetent.

We conclude defendant had not been previously convicted of a "serious felony" as a matter of law. We therefore set aside the jury's "serious felony" finding and order the five-year enhancement term stricken. In all other respects, we affirm the judgment.

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As noted, defendant was convicted by the jury of first degree murder (§ 187). The jury also found true an allegation that defendant had been previously convicted of a…