People v. Pheaster

California Court of Appeal, Second District, Division Two · 1963 · Evidence

EvidenceSentence enhancementsArmed with a weaponPenal Code 12022Penal Code 12023armed withany felonysentence enhancement

Facts

Defendant was convicted of abortion and attempted abortion, and he did not dispute the sufficiency of the evidence on those offenses. He also did not deny possessing a .38 caliber revolver at the time of the attempted abortion. The jury was instructed that a person is armed when he carries a weapon as a means of offense or defense. The evidence permitted an inference that defendant carried the gun as an instrument of offense or defense when police interrupted the attempted abortion.

Issue

Does Penal Code section 12022, which adds punishment for committing any felony while armed, apply only to felonies committed against the person of another as referenced in Penal Code section 12023? More specifically, can section 12022 apply to attempted abortion when the defendant was armed with a concealed firearm?

Rule

Penal Code section 12022 is a punishment provision that applies to any felony when the defendant is armed with a qualifying weapon, so long as being armed is not a necessary element of the underlying felony. Penal Code section 12023 is a separate evidentiary rule and does not limit section 12022 to felonies against the person of another. A person is 'armed' when he carries the weapon as a means of offense or defense.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Nolan Pierce arranged a felony insurance-fraud scheme by staging a warehouse fire. When officers arrested him at the scene, they found an unlicensed revolver tucked in his waistband, and witnesses testified he had brought it in case someone tried to stop him.

If Nolan is convicted of felony insurance fraud, is an additional punishment for being armed most likely proper?

Explanation. The majority treated the enhancement as a punishment provision that reaches any felony, not just crimes against a person. It applies when the defendant carries the weapon as a means of offense or defense, so long as being armed is not already a necessary element of the underlying felony. The fact that other statutes separately criminalize unlawful possession does not bar the added punishment.