Opinion
GRODIN, J.
We granted review in this case and in People v. Piper, post, page 471 [229 Cal.Rptr. 125, 722 P.2d 899], to resolve a conflict in Court [459]*459of Appeal opinions concerning the proper interpretation of several recidivist sentencing provisions—adopted in 1982 as part of Proposition 8—which authorize an additional five-year sentence for defendants convicted of statutorily designated “serious felonies.” (Pen. Code, §§ 667, 1192.7, subd. (c).)1 Here, defendant, convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), contends that the trial court erred in concluding that the prerequisites for a five-year enhancement were properly met. We hold, contrary to defendant’s contention, that an assault-with-a-deadly-weapon conviction may constitute a “serious felony” within the relevant statutes if the prosecution properly established that the defendant “personally used a dangerous or deadly weapon” in the commission of the offense (§ 1192.7, subd. (c)(23)). Further, although defendant contends that the enhancement was improperly imposed in this case because the complaint failed to allege the section 667 enhancement with sufficient particularity, we conclude— on the basis of our decision in People v. Thomas (1986) 41 Cal.3d 837 [226 Cal.Rptr. 107, 718 P.2d 94]—that while the complaint may have been subject to a special demurrer for uncertainty, defendant—having failed to demur— may not challenge the enhancement on this ground on appeal. Accordingly, we affirm the judgment.
I
In April 1983, defendant was charged with two counts of assault with a deadly weapon arising out of an incident in his apartment building in March 1983. In connection with each of the assault counts, the complaint alleged that defendant had inflicted great bodily injury within the meaning of section 12022.7.2
In a separate paragraph, entitled “prior conviction,” the complaint additionally alleged that defendant had previously been convicted of a “serious felony” within the meaning of sections 667 and 1192.7, subdivision (c)(25)—a 1981 attempted robbery conviction. The complaint did not explicitly allege either generally or by reference to any specific provision of section 1192.7, subdivision (c), that defendant’s current offenses were “serious felonies” within the meaning of sections 667 and 1192.7, subdivision (c), and it contained no allegation that defendant had “personally used a dangerous or deadly weapon” in the current offenses.
[460]*460At trial, the “prior conviction” issue was bifurcated from the remainder of the charges, to be determined by the court after the jury’s consideration of the substantive offenses. At the conclusion of the trial on the principal charges, the jury found defendant guilty of one count of assault with a deadly weapon but acquitted him on the other count. With respect to the count on which he was convicted, the jury found that the great bodily injury allegation had not been established.
Thereafter, at the sentencing hearing, the court considered whether, in addition to the sentence for the assault-with-a-deadly-weapon conviction, a five-year enhancement should be imposed under section 667. Defendant conceded that his 1981 attempted robbery conviction constituted a “serious felony” for purposes of section 667. Section 667, however, authorizes a five-year enhancement only when both the defendant’s prior crime and his current offense constitute “serious felonies,” and defendant argued that the prosecution had neither pleaded nor proved that his current offense was such a “serious felony.” Defendant’s argument was based, in part, on a claim that, under the statutory provisions, assault with a deadly weapon could never provide the basis for a “serious felony” under section 667. The trial court rejected the claim, and concluded that defendant’s current offense qualified as a serious felony under section 1192.7, subdivision (c)(23), which defines “serious felony” to include “any felony in which the defendant personally used a dangerous or deadly weapon.” Although defendant noted that the prosecution had not specifically pleaded, nor had the jury specifically found, that defendant personally used a dangerous or deadly weapon, the court apparently concluded that no such pleading was required and that defendant’s “personal use” for purposes of section 667 was adequately established since the evidence at trial clearly demonstrated that there had been no accomplice in this case. Accordingly, the court included an additional five-year enhancement under section 667 in imposing sentence.
On appeal, the Court of Appeal affirmed defendant’s conviction for assault with a deadly weapon but reversed the section 667 enhancement. In reaching the latter conclusion, the Court of Appeal relied in part on People v. Bradford (1984) 160 Cal.App.3d 532 [206 Cal.Rptr. 899], which had earlier concluded that a prior assault-with-a-deadly-weapon conviction did not constitute a “serious felony” under section 1192.7, subdivision (c)(23).
The People then sought review, contending that Bradford's interpretation of the serious felony categories of section 1192.7, subdivision (c) is inconsistent with this court’s reading of the statute in our recent decision in People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736], Because the Courts of Appeal have reached differing conclusions on the issue (compare People v. Arwood (1985) 165 Cal.App.3d 167 [211 Cal.Rptr. [461]*461307] with People v. Sutton (1985) 163 Cal.App.3d 438 [209 Cal.Rptr. 536]), we granted review to resolve the question.3
II
Section 667, subdivision (a) provides an additional five-year prison term for repeat offenders convicted of a “serious felony” who previously have been convicted of another “serious felony.”4 Section 667, subdivision (d) defines “serious felony,” as used in section 667, by reference to section 1192.7, subdivision (c), which lists 25 categories which qualify as “serious felonies.”5
As noted, defendant concedes that his prior conviction for attempted robbery constitutes a serious felony for purposes of section 667. (§ 1192.7, [462]*462subds. (c)(25), (c)(19).) He claims, however, that the trial court erred in finding that the People had properly pleaded and proved that his current offense constitutes a serious felony.
As defendant points out, section 1192.7, subdivision (c) does not include “simple” assault with a deadly weapon (§ 245, subd. (a)(1))—the offense of which he was convicted in this case—among the specifically named offenses included in its numerous categories. Although two “aggravated” assault-with-a-deadly-weapon offenses—(1) “assault with a deadly weapon or instrument on a peace officer” and (2) “assault with a deadly weapon by an inmate” (§ 1192.7, subds. (c)(ll), (c)(13))—are expressly named, simple assault with a deadly weapon is not.6
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
GRODIN, J.
We granted review in this case and in People v. Piper, post, page 471 [229 Cal.Rptr. 125, 722 P.2d 899], to resolve a conflict in Court [459]*459of Appeal opinions concerning the proper interpretation of several recidivist sentencing provisions—adopted in 1982 as part of Proposition 8—which authorize an additional five-year sentence for defendants convicted of statutorily designated “serious felonies.” (Pen. Code, §§ 667, 1192.7, subd. (c).)1 Here, defendant, convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), contends that the trial court erred in concluding that the prerequisites for a five-year enhancement were properly met. We hold, contrary to defendant’s contention, that an assault-with-a-deadly-weapon conviction may constitute a “serious felony” within the relevant statutes if the prosecution properly established that the defendant “personally used a dangerous or deadly weapon” in the commission of the offense (§ 1192.7, subd. (c)(23)). Further, although defendant contends that the enhancement was improperly imposed in this case because the complaint failed to allege the section 667 enhancement with sufficient particularity, we conclude— on the basis of our decision in People v. Thomas (1986) 41 Cal.3d 837 [226 Cal.Rptr. 107, 718 P.2d 94]—that while the complaint may have been subject to a special demurrer for uncertainty, defendant—having failed to demur— may not challenge the enhancement on this ground on appeal. Accordingly, we affirm the judgment.
I
In April 1983, defendant was charged with two counts of assault with a deadly weapon arising out of an incident in his apartment building in March 1983. In connection with each of the assault counts, the complaint alleged that defendant had inflicted great bodily injury within the meaning of section 12022.7.2
In a separate paragraph, entitled “prior conviction,” the complaint additionally alleged that defendant had previously been convicted of a “serious felony” within the meaning of sections 667 and 1192.7, subdivision (c)(25)—a 1981 attempted robbery conviction. The complaint did not explicitly allege either generally or by reference to any specific provision of section 1192.7, subdivision (c), that defendant’s current offenses were “serious felonies” within the meaning of sections 667 and 1192.7, subdivision (c), and it contained no allegation that defendant had “personally used a dangerous or deadly weapon” in the current offenses.
[460]*460At trial, the “prior conviction” issue was bifurcated from the remainder of the charges, to be determined by the court after the jury’s consideration of the substantive offenses. At the conclusion of the trial on the principal charges, the jury found defendant guilty of one count of assault with a deadly weapon but acquitted him on the other count. With respect to the count on which he was convicted, the jury found that the great bodily injury allegation had not been established.
Thereafter, at the sentencing hearing, the court considered whether, in addition to the sentence for the assault-with-a-deadly-weapon conviction, a five-year enhancement should be imposed under section 667. Defendant conceded that his 1981 attempted robbery conviction constituted a “serious felony” for purposes of section 667. Section 667, however, authorizes a five-year enhancement only when both the defendant’s prior crime and his current offense constitute “serious felonies,” and defendant argued that the prosecution had neither pleaded nor proved that his current offense was such a “serious felony.” Defendant’s argument was based, in part, on a claim that, under the statutory provisions, assault with a deadly weapon could never provide the basis for a “serious felony” under section 667. The trial court rejected the claim, and concluded that defendant’s current offense qualified as a serious felony under section 1192.7, subdivision (c)(23), which defines “serious felony” to include “any felony in which the defendant personally used a dangerous or deadly weapon.” Although defendant noted that the prosecution had not specifically pleaded, nor had the jury specifically found, that defendant personally used a dangerous or deadly weapon, the court apparently concluded that no such pleading was required and that defendant’s “personal use” for purposes of section 667 was adequately established since the evidence at trial clearly demonstrated that there had been no accomplice in this case. Accordingly, the court included an additional five-year enhancement under section 667 in imposing sentence.
On appeal, the Court of Appeal affirmed defendant’s conviction for assault with a deadly weapon but reversed the section 667 enhancement. In reaching the latter conclusion, the Court of Appeal relied in part on People v. Bradford (1984) 160 Cal.App.3d 532 [206 Cal.Rptr. 899], which had earlier concluded that a prior assault-with-a-deadly-weapon conviction did not constitute a “serious felony” under section 1192.7, subdivision (c)(23).
The People then sought review, contending that Bradford's interpretation of the serious felony categories of section 1192.7, subdivision (c) is inconsistent with this court’s reading of the statute in our recent decision in People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736], Because the Courts of Appeal have reached differing conclusions on the issue (compare People v. Arwood (1985) 165 Cal.App.3d 167 [211 Cal.Rptr. [461]*461307] with People v. Sutton (1985) 163 Cal.App.3d 438 [209 Cal.Rptr. 536]), we granted review to resolve the question.3
II
Section 667, subdivision (a) provides an additional five-year prison term for repeat offenders convicted of a “serious felony” who previously have been convicted of another “serious felony.”4 Section 667, subdivision (d) defines “serious felony,” as used in section 667, by reference to section 1192.7, subdivision (c), which lists 25 categories which qualify as “serious felonies.”5
As noted, defendant concedes that his prior conviction for attempted robbery constitutes a serious felony for purposes of section 667. (§ 1192.7, [462]*462subds. (c)(25), (c)(19).) He claims, however, that the trial court erred in finding that the People had properly pleaded and proved that his current offense constitutes a serious felony.
As defendant points out, section 1192.7, subdivision (c) does not include “simple” assault with a deadly weapon (§ 245, subd. (a)(1))—the offense of which he was convicted in this case—among the specifically named offenses included in its numerous categories. Although two “aggravated” assault-with-a-deadly-weapon offenses—(1) “assault with a deadly weapon or instrument on a peace officer” and (2) “assault with a deadly weapon by an inmate” (§ 1192.7, subds. (c)(ll), (c)(13))—are expressly named, simple assault with a deadly weapon is not.6
The trial court ruled, however, that defendant’s present offense constituted a “serious felony” under section 1192.7, subdivision (c)(23): “any felony in which the defendant personally used a dangerous or deadly weapon.”7 Defendant raises a number of objections to the trial court’s ruling. As we explain, we conclude that defendant’s objections are unfounded.
Defendant initially contends that subdivision (c)(23) should not be interpreted to apply to any felony in which use of a deadly weapon is itself an element of the crime. He maintains that this subdivision was intended to apply only to those cases in which the prosecution has pleaded and proved personal use of a deadly weapon under section 12022, subdivision (b), a separate sentencing provision which provides a one-year enhancement when a defendant personally uses a dangerous or deadly weapon in the commission of a felony.8 Because section 12022, subdivision (b) contains an explicit proviso making its provisions inapplicable when use of a deadly or dangerous weapon is an element of the underlying offense, defendant argues that subdivision (c)(23) is similarly limited.
In support of his position, defendant relies on People v. Bradford, supra, 160 Cal.App.3d 532. In Bradford, the Court of Appeal noted that the list [463]*463of serious felonies set forth in section 1192.7, subdivision (c) was taken in large part directly from the list of “violent offenses” embodied in a separate sentencing provision—section 12021.1, subdivision (b)9—and concluded that, like section 12021.1, subdivision (b), the categories of section 1192.7, subdivision (c) should be interpreted to refer to already existing “discrete crimes (or former crimes) and enhancements.” (Italics added.) (160 Cal.App.3d at p. 541.) Bradford further ruled that in light of the similarity in language between subdivision (c)(23) and section 12022, subdivision (b), “a serious felony conviction described by [subdivision (c)(23)], and arising out of a crime committed before Proposition 8, is one where an enhancement under section 12022, subdivision (b) was pleaded and proved or admitted.” (Fn. omitted.) (160 Cal.App.3d at p. 542.)10 Because in Bradford the defendant’s prior assault-with-a-deadly-weapon conviction had not been accompanied by a section 12022, subdivision (b) enhancement, the court held that the five-year enhancement of section 667 had been improperly imposed.
Bradford, however, preceded this court’s recent decision in People v. Jackson, supra, 37 Cal.3d 826, and, as Justice Panelli accurately observed for the Court of Appeal in People v. Arwood, supra, 165 Cal.App.3d 167, 174-175, the language of Bradford relied on by defendant is inconsistent with our view of section 1192.7, subdivision (c) in Jackson. As Arwood explains, Jackson “rejected the view that sections 667 and 1192.7 consist only of specific statutory offenses and enhancements. In so doing [Jackson] noted that although Proposition 8’s serious felony enhancement provisions appear to be largely based upon section 12021.1, subdivision (b)’s list of violent offenses, they also include items describing nonviolent criminal conduct which do not precisely correspond to the elements of any preexisting criminal offense. (E.g., ‘selling, furnishing, administering or providing heroin, cocaine, or PCP to a minor’ [§ 1192.7, subd. (c)(24)]; People v. Jackson, supra, 37 Cal.3d at pp. 831-832.) [Jackson] reasoned the inclusion of these items evidenced the voter’s intention to deter certain criminal conduct regardless of whether it refers to specific criminal offenses because it is perceived as dangerous and deserving of additional punishment when committed by recidivists. It therefore concluded the enhancement provisions enacted by Proposition 8 refer to the criminal conduct described therein, not to specific criminal offenses and thus these provisions apply whenever [464]*464the prosecution pleads and proves the specified conduct. (Ibid.)” (Italics in original.) (165 Cal.App.3d at pp. 174-175.)
Defendant contends that Arwood interpreted Jackson too broadly. Although he acknowledges that Jackson held that a number of the categories included in section 1192.7, subdivision (c)—(1) residential burglary and (2) furnishing specified drugs to minors (§ 1192.7, subds. (c)(18), (c)(24))— did not refer to preexisting offenses, defendant maintains that Jackson did not expressly hold that the remaining subdivisions of section 1192.7, subdivision (c)—including subdivision (c)(23)—should not be read to refer only to discrete, preexisting crimes or enhancements. But while defendant is correct in noting that the holding in Jackson was limited to the “residential burglary” category involved in that case, Arwood properly concluded that the reasoning of the Jackson decision cannot be so narrowly confined.
By incorporating section 1192.7, subdivision (c)(23) into section 667, the drafters evidenced their conclusion that a defendant who “personally uses a dangerous or deadly weapon” in the commission of a felony should be classified as a “serious” felon and should be subject to an additional five-year enhancement if he has previously been convicted of a serious felony. In this context, it would be anomalous to exempt an offender simply because use of a dangerous weapon is an element of his underlying offense. The exemption of such crimes from the reach of section 12022, subdivision (b) reflects the nature of the enhancement imposed by that provision; when use of a deadly weapon is itself an element of the offense, the aggravated nature of the offense attributable to the use of such a weapon has already been taken into account in establishing the basic sentence for the offense, and thus it would be illogical to impose an additional enhancement based solely on the fact that a deadly weapon was used. Under section 667 and section 1192.7, subdivision (c)(23), however, a five-year enhancement is not imposed simply because the defendant personally used a dangerous or deadly weapon in the current offense; personal use of such a weapon simply places the defendant into the category of serious offenders who may have their sentence increased if they have previously been convicted of another serious felony. (See, e.g., People v. Kane (1985) 165 Cal.App.3d 480, 487-488 [211 Cal.Rptr. 628].) In the section 667 context, it would be illogical to exclude a person who personally used a deadly weapon from subdivision (c) (23)’s serious felony category simply because his use of the weapon happens also to be an element of the offense of which he is convicted.
Defendant argues, however, that if subdivision (c)(23) is interpreted to apply to felonies in which use of a deadly weapon is an element of the offense, two other categories of section 1192.7, subdivision (c)— the two “aggravated” assault-with-a-deadly-weapon offenses noted above [465]*465(§ 1192.7, subds. (c)(ll), (c)(13))—are rendered superfluous. In the first place, this contention overlooks the fact that subdivision (c)(23) applies only to defendants who personally use a deadly weapon in the course of their offense; defendants can be found to have committed a serious felony under the aggravated assault categories if they are simply accomplices in the aggravated assault and so those categories include persons who would not fall under subdivision (c)(23). More fundamentally, this contention is premised on the erroneous assumption that section 1192.7, subdivision (c) was carefully drafted so that each of its 25 categories would be mutually exclusive and there would be no overlapping of subdivisions. From the face of the statute, however, it is clear that the categories were not devised with that precision.11 Rather, it appears that the categories were intended to be cumulative, and that in the case of the categories—like subdivision (c)(23)— that apply to “any felony” if committed in a particular manner, a defendant’s conduct may place him into the “serious felony” classification under a number of different categories.
Accordingly, we conclude that under subdivision (c)(23), “any felony”— including assault with a deadly weapon—may be found to constitute a serious felony if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense. Although the prosecution may establish the elements required by subdivision (c)(23) by pleading and proving a separate section 12022, subdivision (b) enhancement, a section 12022, subdivision (b) enhancement is not a necessary prerequisite to the application of subdivision (c)(23). To the extent that Bradford is inconsistent with this conclusion, it is disapproved.12
[466]*466Defendant additionally contends that even if subdivision (c)(23) may be invoked when an offender has been convicted of assault with a deadly weapon, the trial court nonetheless erred in imposing a five-year enhancement in this case because the complaint failed to allege, and the jury never found, that defendant had “personally used a dangerous or deadly weapon,” one of the necessary elements of subdivision (c)(23). As defendant correctly observes, “personal use” is not a necessary element of the assault with a deadly weapon offenses charged by the complaint. (See, e.g., People v. Chagolla (1983) 144 Cal.App.3d 422, 429 [193 Cal.Rptr. 711]; People v. Herrera (1970) 6 Cal.App.3d 846, 852-853 [86 Cal.Rptr. 165].)
As noted in the earlier statement of facts, while the complaint in this case alleged that defendant’s prior attempted robbery conviction was a serious felony under section 667 and section 1192.7, subdivision (c)(25)— and thus placed defendant on notice that a five-year enhancement under section 667 was being sought—it did not inform him of the basis on which the prosecution claimed that his current offense was a serious felony for purposes of section 667. Because simple assault with a deadly weapon is not one of the offenses specifically named in section 1192.7, subdivision (c), the complaint left it uncertain as to which of the more general categories of section 1192.7, subdivision (c) the prosecution intended to rely on. We agree with defendant that, under these circumstances, he was entitled to more specific notice of the facts the prosecution intended to prove to justify the section 667 enhancement. (See People v. Jackson, supra, 37 Cal.3d at p. 835, fn. 12.)
[467]*467Nonetheless, as we explained in our very recent decision in People v. Thomas, supra, 41 Cal.3d 837, 843, defendant’s remedy for obtaining more specific notice in this regard is provided by the special demurrer procedure authorized by section 1012, and, having failed to invoke that remedy, defendant may not urge the point on appeal. As Thomas observes, because “[t]he defect in the pleading ... is one of uncertainty only, [it] is waived by defendant’s failure to demur.” (Ibid..)13
Finally, there is no merit to defendant’s claim that the enhancement is invalid because the jury in this case never explicitly found that defendant had “personally used” the weapon. With defendant’s consent, the section 667 enhancement issue was bifurcated from the remainder of the case and set for determination by the court. On the basis of the evidence that had been presented at trial, the court could properly find that the prosecution had proved defendant’s “personal use” of the weapon; indeed, the record leaves no doubt on this factual point.
Accordingly, the judgment of the Court of Appeal is reversed insofar as it invalidates the section 667 enhancement. In all other respects, the judgment of the Court of Appeal is affirmed.
Bird, C. J., Mosk, J., Lucas, J., and Panelli, J., concurred.