Burnett

Kim Harold Burnett appeals from a conviction of being a felon in possession of a firearm. He raises a number of challenges based on the underlying claim that he was tried for an offense different from the one charged in the information and addressed by the evidence at the preliminary hearing. We will conclude his conviction must be reversed due to ineffective assistance of counsel. We will additionally grant the related petition for writ of habeas corpus filed after oral argument on the appeal.

Statement of the Case

Appellant was charged by information filed on May 31, 1996, with one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. *156 (a)(1)) 1 and one count of brandishing a firearm (§ 417, subd. (a)(2)). Both offenses were alleged to have occurred on or about January 8, 1996, at Bay Point in Contra Costa County. The first count specifically alleged that appellant possessed a “.38 caliber revolver.” The information further alleged that appellant had suffered two prior convictions within the meaning of section 1170.12 and had served seven prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant pleaded not guilty…

I respectfully, but strongly, dissent. The fact that there are two different “incidents” of gun possession by a felon does not mean that a prosecutor must charge two separate offenses, or even that there are such. Further, there is absolutely no statutory or constitutional impediment to the result in the instant case, much less any prejudicial ineffective assistance of counsel. I will deal with these points in the order just noted.

A.

Preliminarily, it should be stressed that, when Penal Code section 12001, subdivision (k), says that, notwithstanding the “any firearm” phraseology of section 12021, “each firearm . . . shall constitute a distinct and separate offense,” it does not mean that, in cases of multiple possessions of firearms, the district attorney must charge each possession as a separate offense. This is so because, among other things, of (1) the legislative history of that provision, (2) the doctrine of separation of powers, and (3) established precedent that multiple but similar offenses may sometimes be charged in one or several counts.

Subdivision (k) of Penal Code section 12001 was adapted in 1994 and was a well-advertised legislative overruling of People v. Kirk…

Concurring.— I am constrained to separately concur because the vigor of the debate between *184 my colleagues may suggest the need for a new rule, where none is required, and create an impression of confusion in the law where none exists.

The potential for confusion results in part from the nature of Penal Code section 12021, which creates a status offense which cannot be characterized by identification of any particular victim. It is enough to sustain a conviction under this section that a defendant is found to be a convicted felon simply possessing a firearm; and both the nature of the possession and “firearm” are broadly defined. The lack of an identifiable victim allows the dissent to argue that the “offense” alleged in the information, and described by the evidence produced at the preliminary hearing, can result in a sustainable guilty verdict even if the evidence adduced at the trial describes a different gun observed by different witnesses at a different time and place. My dissenting colleague concludes that because the offense is a simple matter of “felon plus gun equals conviction” any combination of evidence can suffice to support the conviction, even if such evidence…

Kim Harold Burnett appeals from a conviction of being a felon in possession of a firearm. He raises a number of challenges based on the underlying claim that he was tried for an offense different from the one charged in the information and addressed by the evidence at the preliminary hearing. We will conclude his conviction must be reversed due to ineffective assistance of counsel. We will additionally grant the related petition for writ of habeas corpus filed after oral argument on the appeal.

Appellant was charged by information filed on May 31, 1996, with one count of being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)(1)) [1] and one count of brandishing a firearm (§ 417, subd. (a)(2)). Both offenses were alleged to have occurred on or about January 8, 1996, at Bay Point in Contra Costa County. The first count specifically alleged that appellant possessed a ".38 caliber revolver." The information further alleged that appellant had suffered two prior convictions within the meaning of section 1170.12 and had served seven prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant pleaded not guilty and denied the priors.…