THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHRISTOPHER BAIRD, Defendant and Appellant, 12 Cal. 4th 126

Opinion BAXTER, J. When a prior felony conviction is used against a defendant to establish the ex-felon element of a charge under

section 12021 of the Penal Code (possession of a firearm by an ex-felon), may the prison term resulting from that prior conviction be used to enhance the defendant’s sentence under

section 667.5, subdivision (b) (section 667.5(b))? The Court of Appeal below concluded that People v. Edwards (1976) 18 Cal.3d 796 [135 Cal.Rptr. 411, 557 P.2d 995] and People v. Wilks (1978) 21 Cal.3d 460 [146 Cal.Rptr. 364, 578 P.2d 1369] were controlling on this issue. Those cases, which were decided under the former indeterminate sentencing law, held that when a prior conviction is used as an element of a crime, the same conviction cannot also be used to increase the minimum sentence for the crime.

In addition to finding the rule of those decisions (the Edwards rule) applicable, the Court of Appeal also interpreted People v. Jones (1993) 5 Cal.4th 1142 [22 Cal.Rptr.2d 753, 857 P.2d 1163] (Jones)— which concluded as a matter of statutory

interpretation that

section 667 barred the imposition of cumulative sentence enhancements for a prior conviction under

section 667 and a prior prison term under

section 667.5(

b) based on a single prior felony offense—to preclude the use of a prior prison term to increase the sentence for a current substantive offense whenever the underlying conviction is used to establish an element of that offense. We conclude the Court of Appeal erred. In our view, the Edwards rule has no application here because

section 667.5(

b) does not permit the mere fact of a prior conviction to increase the sentence for a

section 12021 offense. Moreover, Jones, supra, 5 Cal.4th 1142, did not hold or otherwise suggest that a prior prison term may not enhance the sentence for a current offense where the felony conviction that resulted in the prison term is used to establish an essential element of the offense. We therefore reverse the judgment of the Court of Appeal and remand the matter to that court with directions to resolve a remaining issue consistent with our analysis in People v. Coronado (1995) 12 Cal.4th 145 [48 Cal.Rptr.2d 77, 906 P.2d 1232]. I.

Factual and Procedural Background On June 19, 1992, defendant Robert Christopher Baird pleaded guilty to charges of possession of a firearm by an ex-felon (§ 12021, subd. (a)) and spousal battery (§ 273.5, subd. (a)). He also admitted he had served a prior prison term for a felony, burglary, within the meaning of

section 667.5(b). The court suspended imposition of the sentence and placed defendant on probation. After defendant violated conditions of his probation, the superior court revoked the probation grant and sentenced defendant to state prison for a total of three years, consisting of the midterm of two years for the firearm possession plus an enhancement of one year under

section 667.5(b). On appeal, defendant contended that the use of the same prior conviction to establish the ex-felon element of the charge under

section 12021 and to enhance the sentence therefor violates

section 654, which bars multiple punishment of an “act or omission.” He also contended that such a use is prohibited under People v. Edwards, supra, 18 Cal.3d 796, People v. Wilks, supra, 21 Cal.3d 460, and Jones, supra, 5 Cal.4th 1142. Without reaching the

section 654 issue, the Court of Appeal agreed with defendant that case law barred imposition of the one-year enhancement. The court concluded that the enhancement must be stricken, but otherwise affirmed the judgment. We granted the People’s petition for review. II. Discussion The issue before us is whether People v. Edwards, supra, 18 Cal.3d 796, People v. Wilks, supra, 21 Cal.3d 460, or Jones, supra, 5 Cal.4th 1142, prohibits the use of a prior prison term to enhance a sentence under

section 667.5(

b) where the prior conviction that resulted in the prison term is used to establish the ex-felon element of a charge under

section 12021. As pertinent here,

section 12021 makes it a felony for any person who has been convicted of a felony under state or federal law to own or to be in possession, custody, or control of a firearm. (§ 12021, subd. (a).) The ex-felon status of a person charged under

section 12021 is an element of the offense which must be proved to the trier of fact. (See People v. Bouzas (1991) 53 Cal.3d 467, 479 [279 Cal.Rptr. 847, 807 P.2d 1076] [contrasting prosecutions under § 12021 and those under § 666 for petit theft with prior theft-related conviction].)

Section 667.5 provides in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: OH • • • [U (b) . . . where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Italics added.) Initially we note defendant does not argue that either

section 12021 or

section 667.5(

b) expressly precludes the use of a prior felony conviction to establish the ex-felon element of the substantive offense (§ 12021), and the simultaneous use of the prior prison term served for that same prior conviction to enhance the sentence therefor under

section 667.5(b). Rather, defendant relies upon decisional law and the principle that legislative enactments should not be construed to overthrow long-established principles of law unless such an intention is clearly shown. (See People v. Pitts (1990) 223 Cal.App.3d 606, 870 [273 Cal.Rptr. 757].) Prior to the effective date of the determinate sentencing law (July 1, 1977), it was clear that a trial court could not rely upon a defendant’s prior felony conviction to augment a sentence under former

section 3024, subdivision (

c) where the same conviction had been used to establish the ex-felon element of an offense under

section 12021. This was the rule expressed in People v. Edwards, supra, 18 Cal.3d 796 and in People v. Wilks, supra, 21 Cal.3d 460. In People v. Edwards, supra, 18 Cal.3d 796, a defendant was convicted of possession of a firearm by a felon under

section 12021. A prior conviction for selling marijuana served as the basis for the ex-felon element of the possession charge. (18 Cal.3d at pp. 799-800.) The trial court purported to augment the defendant’s sentence pursuant to former

section 3024, which at the time provided for increased minimum terms for persons previously convicted of a felony. In concluding the additional punishment must be stricken, People v.

Edwards, supra, explained: “The court’s reliance on defendant’s prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense . . . runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.” (18 Cal.3d at p. 800, italics added.) Similarly, People v.

Wilks, supra, found the trial court erred in allowing the same prior conviction to be used both as an element of an substantive offense under

section 12021 and to enhance punishment for that same offense. (21 Cal.3d at p. 470.) Effective July 1, 1977, the Uniform Determinate Sentencing Act of 1976 became law (Stats. 1976, ch. 1139), and former

section 3024 was repealed (Stats. 1976, ch. 1139, § 279, p. 5151).

Section 667.5(

b) was enacted as part of the new law. (Stats. 1976, ch. 1139, § 268, pp. 5137-5139.) After former

section 3024’s repeal and prior to our decision in Jones, supra, 5 Cal.4th 1142, a number of appellate courts concluded that the enactment of the determinate sentencing law abrogated the Edwards rule. (E.g., People v. Price (1992) 4 Cal.App.4th 1272, 1278 [6 Cal.Rptr.2d 263]; People v. Rodriguez (1988) 206 Cal.App.3d 517, 519-520 [253 Cal.Rptr. 633]; People v. Levell (1988) 201 Cal.App.3d 749, 752 [247 Cal.Rptr. 489]; People v. Bruno (1987) 191 Cal.App.3d 1102, 1106-1107 [237 Cal.Rptr. 31].) For the most part, those courts found it significant that the Legislature deleted the following sentence from the final version of

section 1170, subdivision (b), prior to its operative date: “In no event shall any fact be used twice to determine, aggravate, or enhance a sentence.” (Stats. 1977, ch. 165, § 15, p. 647.) In their view, this sentence was to have codified the Edwards rule; thus its deletion reflected legislative intent to eliminate the rule. (People v. Price, supra, 4 Cal.App.4th at p. 1278; People v. Rodriguez, supra, 206 Cal.App.3d at pp. 519-520; People v. Levell, supra, 201 Cal.App.3d at p. 752; People v. Bruno, supra, 191 Cal.App.3d at pp. 1106-1107.) The Court of Appeal in this case disagreed with the above authorities.

In questioning whether the deleted language was intended to codify the Edwards rule, the court quoted the following passage from People v. Darwin, supra, 12 Cal.App.4th at pages 1103-1104: “The holding in Edwards was that if a prior conviction is an ‘element’ of an offense, the prior may not be used for sentence enhancement. [Citation.] The later-deleted sentence in the original version of

section 1170 did not address the dual use of a prior as an element of an offense and for sentence enhancement, but merely addressed sentencing, stating that a fact could not be used twice to ‘determine, aggravate, or enhance a sentence.’ These two points are not the same. Thus, the legislative action did not abrogate the Edwards rule.” The Court of Appeal then concluded that even if the original language meant to codify the Edwards rule, it could not be reasonably inferred from its deletion that the Legislature had intended to overrule the case sub silentio. In our view, People v.

Edwards, supra, 18 Cal.3d 796 and People v. Wilks, supra, 21 Cal.3d 460, simply have no direct bearing on the issue at hand. Those cases stand for the proposition that when a prior conviction is used as an element of a crime (e.g., § 12021), the same conviction cannot also be used to increase the minimum sentence for the crime. That principle is not implicated here.

Section 667.5(

b) does not permit the mere fact of a prior conviction to increase the sentence for a

section 12021 offense. Rather,

section 667.5(

b) authorizes additional punishment only if the additional factor of prison incarceration for the prior conviction is established. In this regard, we find the following reasoning in People v. Gaines (1980) 112 Cal.App.3d 508 [169 Cal.Rptr. 381] (Gaines) persuasive: “Whereas former

section 3024 prescribed a minimum term of imprisonment for a person ‘previously convicted of a felony,’

section 667.5, subdivision (b), now provides for the imposition of a one-year sentence enhancement for ‘each prior separate prison term served’ for any felony. The Attorney General argues that the ‘double use of facts’ argument cannot be made under

section 667.5, subdivision (b), because it is the prior ‘conviction’ which constitutes an essential element of the crime of possession of a firearm by a felon, whereas it is the ‘prison term served’ for the prior felony which triggers the enhancement prescribed by

section 667.5, subdivision (b). The distinction between a prior felony conviction and a separate prison term served for such felony is obvious. A prior felony conviction could well have resulted in something less than confinement in the state prison, in which event no enhancement would be called for under

section 667.5, subdivision (b).” (Gaines, supra, 112 Cal.App.3d at p. 516; see also People v. Faught (1981) 124 Cal.App.3d 848, 860 [177 Cal.Rptr. 637].) In short, the Edwards rule is not impinged upon where, as here, a fact (i.e., the service of a prior prison term) that is not integral or indispensable to an element of

section 12021 (i.e., a prior felony conviction) is used to enhance a sentence therefor. In rejecting the above analysis, the Court of Appeal interpreted Jones, supra, 5 Cal.4th 1142, as compelling the conclusion that

section 667.5(

b) punishes a defendant for the fact of the underlying conviction and not for the service of the prior prison term for purposes of assessing whether an improper dual use of facts has occurred. As we shall demonstrate, that

interpretation is wrong. Jones addressed the issue whether

section 667, enacted by the voters in 1982 as part of Proposition 8, permitted the imposition of cumulative sentence enhancements for a prior conviction under

section 667 and a prior prison term under

section 667.5(b), based on a single prior felony offense (there, kidnapping). Jones determined, as a preliminary matter, that sections 667 and 667.5(

b) do not identify and punish differently situated individuals for purposes of deciding whether a defendant may be exposed to the two enhancements for the same prior offense. (Jones, supra, 5 Cal.4th at pp. 1148- 1149.) That determination was based upon the analysis in People v. Prather (1990) 50 Cal.3d 428, 439-440 [267 Cal.Rptr. 605, 787 P.2d 1012], which concluded that “prior prison term” enhancements imposed pursuant to

section 667.5(

b) are “prior felony conviction” enhancements within the meaning of

article I,

section 28, subdivision (f), of the California Constitution, and by operation of that constitutional provision are exempt from the double-the-base-term limitation contained in

section 1170.1, subdivision (g). After finding that both enhancements applied to the same facts at issue, Jones applied principles of statutory

interpretation to determine that the most reasonable reading of

section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a

section 667 enhancement, only the greater enhancement may apply. (5 Cal.4th at p. 1150.) Since its statutory construction of

section 667 resolved the matter favorably to the defendant, Jones declined to address whether

section 654’s prohibition against dual punishment is applicable to enhancements. (5 Cal.4th at p. 1152.) In concluding that the Gaines analysis was discredited, the Court of Appeal placed heavy emphasis on the statement in Jones that the distinction between prior prison terms and prior felonies for enhancement purposes was “ ‘untenable’ and, by inference, ‘hypertechnical’ and ‘ “supertechnical." ’ ” (Jones, supra, 5 Cal.4th at p. 1148; see also People v. Prather, supra, 50 Cal.3d at pp. 439-440.) Relying upon this language, the court determined that Gaines, supra, 112 Cal.App.3d 508, had been disapproved to the extent it relied on the rationale that a

section 667.5(

b) enhancement is based upon the fact of the prior prison term and not the underlying conviction. The Court of Appeal misapprehended the true nature and scope of our decision in Jones. As that opinion makes clear, Jones specifically based its holding upon a statutory construction of

section 667. (5 Cal.4th at pp. 1149- 1152.) Although Jones determined that enhancements under

section 667 and

section 667.5(b) “apply to the same facts” for purposes of analyzing

section 667 (5 Cal.4th at p. 1149), Jones did not suggest that prior convictions and prior prison terms must be viewed as always applying to the same facts regardless of context. Nor did Jones disapprove of certain meaningful distinctions that had been judicially drawn between prior convictions and prior prison terms. Rather, in focusing upon the electorate’s intent in enacting

section 667, Jones emphasized that almost all prior convictions justifying enhancement under

section 667 would entail a prior prison term: “If a prior felony is ‘violent’ enough to qualify for an enhancement under

section 667.5, it will a fortiori be noxious enough to qualify as ‘serious’ under subdivision (

a) of

section 667, and will almost always have resulted in a prison term. The result is that five-year enhancements will become eight-year enhancements in all but a very few cases.” (5 Cal.4th at p. 1150, italics added.) Recognizing that the defendant there received not the three-year enhancement under

section 667.5, subdivision (a), but rather a one-year enhancement under

section 667.5(b), Jones concluded: “Just as it would be anomalous for the law to impose an eight-year enhancement when the voters specified five, so also would it be for the law to impose a six-year enhancement when the voters specified five.” (5 Cal.4th at p. 1150, fn. omitted.) To avoid that result, Jones construed

section 667 to bar the cumulative imposition of both enhancements. Unlike the particular situation in Jones, it cannot be said that all or nearly all felony convictions used to establish the ex-felon element of a

section 12021 violation will have resulted in the service of a prior prison term. In other words, there is no danger that the sixteen-month, two-year and three-year state prison terms prescribed by law for violations of

section 12021 (see § 18) will become twenty-eight-month, three-year and four-year terms “in all but a very few cases.” (Compare with Jones, supra, 5 Cal.4th at p. 1150.) Because a one-year enhancement applies only in those cases where a prior conviction resulted in a prior prison term, no anomaly of the sort in Jones is threatened. Accordingly, the Court of Appeal erred in relying upon that decision to find a prohibited dual use of facts. We address one other point. As part of its analysis, the Court of Appeal concluded that if the Legislature had truly intended to permit a

section 667.5(

b) enhancement under the circumstances of this case, it could have clearly expressed its intent as it did with enhancements under

section 12022.5, subdivision (d). That provision expressly authorizes enhancements for the personal use of a firearm in cases where the defendant has been convicted of assault with a deadly weapon by means of a firearm. We find this reasoning flawed. Considered as a whole,

section 12022.5 does not support the Court of Appeal’s position. In particular, subdivision (

a) of

section 12022.5 states explicitly that, except as otherwise provided, “any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted. . . .” (Italics added.) Subdivision (

d) of

section 12022.5, upon which the Court of Appeal relied, merely lists exceptions to subdivision (a)’s specific prohibition on dual use. (See People v. Martinez (1987) 194 Cal.App.3d 15, 18-19 [239 Cal.Rptr. 272] [interpreting similar version of § 12022.5 as amended by Stats. 1982, ch. 1404, p. 5358].) In contrast, the relevant statutes here contain no express proscription like that in subdivision (

a) of

section 12022.5. Hence, the absence of a provision similar to that in

section 12022.5, subdivision (d), is of no significance. If anything, we may infer from the prohibitive language in

section 12022.5, subdivision (

a) that, if the Legislature had actually intended to forbid a perceived dual use in the context of prior prison term enhancements for convictions under

section 12021, it could have and would have invoked analogously-appropriate language in

section 12021 or

section 667.5(b). III. Disposition Because it erroneously concluded that the prior prison term enhancement must be stricken under People v. Edwards, supra, 18 Cal.3d 796, People v. Wilks, supra, 21 Cal.3d 460, and Jones, supra, 5 Cal.4th 1142, the Court of Appeal did not consider defendant’s alternative argument that the enhancement was otherwise barred under

section 654. That issue is analyzed and decided in the companion case of People v. Coronado. We therefore reverse the judgment of the Court of Appeal and remand the matter with directions to resolve the

section 654 issue consistent with that decision. Lucas, C. J., Arabian, J., George, J., and Werdegar, J., concurred. Unless otherwise indicated, all further statutory references are to the Penal Code, Former

section 3024 provided in relevant part: “The following shall be the minimum term of sentence and imprisonment in certain cases, notwithstanding any other provision of this code, or any provision of law specifying a lesser sentence: [1 . . . []D (

c) For a person previously convicted of a felony . . . two years.” (Stats. 1957, ch. 1617, § 3, p. 2964, italics added, repealed by Stats. 1976, ch. 1139, § 279, p. 5151, operative July 1, 1977.) These cases rejected the Edwards rule in the context of deciding that when a prior conviction is used to establish a felony offense under

section 666 (petit theft with a prior), the resulting incarceration may be utilized for enhancement purposes. Although one appellate court initially concluded that the Edwards rule was applicable in that context (People v. Ancira (1985) 164 Cal.App.3d 378 [210 Cal.Rptr. 527]), the same court eventually repudiated that conclusion in People v. Darwin (1993) 12 Cal.App.4th 1101, 1104 [15 Cal.Rptr.2d 894], People v. Darwin, supra, went on to hold, however, that the Edwards rule, while not abrogated, does not apply when a prior conviction is used as a sentencing factor under

section 666. (12 Cal.App.4th at p. 1104.) When Jones, supra, 5 Cal.4th 1142, was decided,

section 667 provided in pertinent part: “ ‘HO (

a) In compliance with subdivision (

b) of

Section 1385, any person convicted of a serious felony . . . who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. HD (

b) This

section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this

section to apply.’ ” (§ 667, as quoted in Jones, supra, 5 Cal.4th at p. 1146.) Relying on certain reports which are outside the record and were not considered by the Legislature in enacting sections 12021 and 667.5(b), Justice Kennard claims that over half of those convicted of felonies in 1993 served a prison term therefor. (Dis. opn„ post, at pp. 142-143 & fn. 2.) We find such reports are irrelevant to the issue of legislative intent and we seriously question whether the percentage of felons who served prison terms for their convictions has been accurately extrapolated therefrom.

However, even if we were to accept Justice Kennard’s calculations as both relevant and correct for purposes of argument, the “fact” that nearly half of those convicted of felonies in 1993 did not serve a prison term for their convictions (see dis. opn., post, at p. 142) supports our conclusion that the service of a prison term is neither integral nor indispensable to a felony conviction. We'therefore are satisfied that our holding poses no conflict with Jones, supra, 5 Cal.4th 1142, the Edwards rule, or In re Shull (1944) 23 Cal.2d 745 [146 P.2d 417],

Section 12022.5, subdivision (d), provides in full: “The additional term provided by this

section may be imposed in cases of assault with a firearm under paragraph (2) of subdivision (

a) of

Section 245, or assault with a deadly weapon which is a firearm under

Section 245, or murder if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.” Unlike the Court of Appeal, defendant appears to place more emphasis on previous versions of

section 12022.5 (Stats. 1976, ch. 1139, § 305, p. 5162, operative July 1, 1977; Stats. 1977, ch. 165, §92, p. 678, operative July 1, 1977), as well as a predecessor statute (Stats. 1969, ch. 954, § 1, pp. 1900-1901). We have reviewed these earlier enactments, but find they do not aid defendant’s position. In a final attempt to illustrate the point that the Edwards rule remains applicable unless the Legislature clearly expresses a contrary intention, defendant cites to Health and Safety Code

section 11370.2, which expressly authorizes sentence enhancements for persons with certain drug-related prior convictions in addition to any other punishment authorized by law, including enhancements under

section 667.5. We reject this argument. First, as explained above, the imposition of a prior prison term enhancement does not violate the Edwards rule, which prohibited the use of the same prior conviction to establish the ex-felon element for a

section 12021 offense and to increase the minimum sentence therefor. Second, because Health and Safety Code

section 11370.2 concerns sentence enhancements for substantive offenses not requiring proof of a prior conviction as an element, defendant’s attempted analogy is off the mark.