People v. Cortez

520 N.W.2d 693, 206 Mich. App. 204

• Court: Michigan Court of Appeals
• Decided: July 6, 1994
• Docket: Docket 164949
• Status: Published

Opinion

Per Curiam.

Defendant pleaded guilty of intentional discharge of a firearm from a motor vehicle (idfmv), MCL 750.234a; MSA 28.431(1), carrying a concealed pistol in a motor vehicle (ccw), MCL 750.227(2); MSA 28.424(2), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to concurrent prison terms of IV2 to 4 years for the idfmv conviction and IV2 to 5 years for the ccw conviction. These terms were to run consecutively to a two-year mandatory term for the felony-firearm conviction. Defendant appeals as of right.

These charges all arose out of a single shooting incident. Defendant argues that his conviction of both idfmv and ccw violates the Double Jeopardy Clauses of the United States and Michigan Constitutions. 1 We disagree. In cases involving sentences for the same offense under different statutory provisions, this Court must determine whether the Legislature intended multiple punishment. People v Robideaux, 419 Mich 458, 485; 355 NW2d 592 (1984); People v Kaczorowski, 190 Mich App 165, 169; 475 NW2d 861 (1991). "[Statutes prohibiting conduct that violates distinct social norms can generally be viewed as separate and as permitting multiple punishment. The key is to identify the type of harm or conduct the Legislature intended to prevent.” Id., citation omitted. This Court cannot apply the "factual identity” test advocated by defendant, set forth in People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980), and rejected by the Supreme Court in Robideaux, supra, and People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983).

The idfmv statute provides in relevant part: "[A]n individual who intentionally discharges a firearm from a motor vehicle ... in such a man ner as to endanger the safety of another individual is guilty of a felony . . . MCL 750.234a; MSA 28.431(1). The ccw provision at issue here reads as follows: "A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person . . . without a license to carry the pistol as provided by law . . . .” MCL 750.227(2); MSA 28.424(2).

We believe the idfmv and ccw statutes address different social norms. The ccw statute is designed to prevent the carrying of unlicensed pistols in motor vehicles. It recognizes the facility of motor vehicles for concealing and transporting arms. On the other hand, the idfmv statute is directed against the firing of a weapon from the vehicle. It addresses the particular danger posed by shootings in which rapid flight is possible for the shooter. Also relevant to the analysis is the fact that the sanction for the carrying of a concealed weapon is greater (five years or $2,500) than that for shooting the weapon (four years or $2,000, or both).

Another helpful tool in determining legislative intent is the test outlined in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). People v Sturgis, 427 Mich 392, 404-405; 397 NW2d 783 (1986); Kaczorowski, supra at 170-171. The Blockburger test focuses on whether two separate statutes each include an element the other does not. Sturgis, supra at 409. In this case, one statute does not simply build upon the other. The ccw provision at issue requires proof that the firearm was an unlicensed pistol. The idfmv statute requires proof that the firearm was discharged from a vehicle.

Accordingly, we conclude that defendant’s conviction on both the idfmv and ccw charges does not violate his constitutional rights against double jeopardy.

Defendant also contends that the trial court erred in ordering his felony-firearm sentence to run consecutively to the ccw sentence. We agree, and the prosecutor concedes this issue to defendant. Under MCL 750.227b(l); MSA 28.424(2)(1), a defendant is not guilty of felony-firearm if the underlying felony is the carrying of a concealed weapon. Although the presence of a second underlying felony allows defendant’s felony-firearm conviction to stand, Sturgis, supra at 410, it follows that the felony-firearm sentence may run consecutively only to that second underlying felony. We order defendant’s sentences amended accordingly. MCR 7.216(A)(1) and (A)(7); Brinson v Genesee Circuit Judge, 403 Mich 676, 687; 272 NW2d 513 (1978).

Affirmed as modified.

1 US Const, Am V; Const 1963, art 1, § 15.