Piper

This case, like People v. Equarte, ante, page 456 [ 229 Cal.Rptr. 116 , 722 P.2d 890 ], requires us to determine the proper interpretation of the “serious felony” provisions of Penal Code sections 667 and 1192.7, subdivision (c) as applied to an offense that is not expressly listed by name in the statutes. 1 The question here is whether the trial court properly imposed a separate, additional five-year enhancement on the basis of defendant’s prior conviction of shooting at an occupied vehicle (§ 246). We hold that the offense of shooting at an occupied vehicle may constitute a “serious felony” under the two categories of section 1192.7, subdivision (c) which define “serious felony” to include “any felony” in which the defendant uses a firearm or a dangerous or deadly weapon (§ 1192.7, subds. (c)(8), (c)(23)), provided it is established that the defendant personally used a firearm or a dangerous or deadly weapon in the commission of the offense. Because “personal use” was not an element of defendant’s prior conviction and because under our recent decision in People v. Jackson (1985) 37 Cal.3d 826, 836 [ 210 Cal.Rptr. 623 , 694 P.2d 736 ], the prosecution may not go behind…

I respectfully dissent. I agree with the majority’s conclusion “that the offense of shooting at an occupied vehicle is not, by its nature, exempt from the possible application of subdivision (c)(23) and (c)(8).” However, unlike the majority, I believe the minimum elements of the offense of shooting at an occupied vehicle (Pen. Code, § 246 1 ) necessarily make the offense a “serious felony” for the purpose of sections 667 and 1192.7, subdivision (c). In my view, whether the defendant personally used the firearm or was an accomplice to its use is irrelevant as far as subdivision (c)(8) of section 1192.7 is concerned. The majority, on the other hand, holds that the offense described in section 246 can be a serious felony only if personal use of a firearm has been alleged and proved.

Subdivision (c)(8), in part, defines a serious felony as “any felony in which the defendant uses a firearm.” I am unable to read the provision to require personal use of a firearm. This is especially true in view of subdivision (c)(23) of the same section which defines as a serious felony one “in which the defendant personally used a dangerous or deadly weapon.” (Italics added.) The language is…

This case, like People v. Equarte, ante, page 456 [ 229 Cal. Rptr. 116 , 722 P.2d 890 ], requires us to determine the proper interpretation of the "serious felony" provisions of Penal Code sections 667 and 1192.7, subdivision (c) as applied to an offense that is not expressly listed by name in the statutes. [1] The question here is whether the trial court properly imposed a separate, additional five-year enhancement on the basis of defendant's prior conviction of shooting at an occupied vehicle (§ 246). We hold that the offense of shooting at an occupied vehicle may constitute a "serious felony" under the two categories of section 1192.7, subdivision (c) which define "serious felony" to include "any felony" in which the defendant uses a firearm or a dangerous or deadly weapon (§ 1192.7, subds. (c)(8), (c)(23)), provided it is established that the defendant personally used a firearm or a dangerous or deadly weapon in the commission of the offense. Because "personal use" was not an element of defendant's prior conviction and because under our recent decision in People v. Jackson (1985) 37 Cal.3d 826, 836 [ 210 Cal. Rptr. 623 , 694 P.2d 736 ], the prosecution may…