43 Cal.4th 1118, S149898, People v. Gonzalez

Docket Nº:S149898
Citation:43 Cal.4th 1118, __ Cal.Rptr.3d__, __P.3d__
Party Name:People v. Gonzalez
Case Date:June 02, 2008
Court:Supreme Court of California

Page 1118

43 Cal.4th 1118

__ Cal.Rptr.3d__, __P.3d__

THE PEOPLE, Plaintiff and Respondent,


SILVESTRE GARCIA GONZALEZ et al., Defendants and Appellants.


Supreme Court of California

June 2, 2008

El Dorado County Super. Ct. No. P00CRF0406, Ct.App. 3 C045935, Eddie T. Keller, Judge.

Page 1119

[Copyrighted Material Omitted]

Page 1120

[Copyrighted Material Omitted]

Page 1121

[Copyrighted Material Omitted]

Page 1122


Hilda Scheib, under appointment by the Supreme Court, for Defendant and Appellant Silvestre Garcia Gonzalez.

Carlo Andreani, under appointment by the Supreme Court, for Defendant and Appellant Luis Lopez Arriaga.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Stephen G. Herndon, David Andrew Eldridge, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

Bonnie M. Dumanis, District Attorney (San Diego) and Charles E. Nickel, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.



As relevant here, a jury found defendant Luis Lopez Arriaga guilty of the attempted premeditated murder of William Hunt.1 The jury also found that, in the commission of that offense, defendant used a firearm in a manner described in Penal Code section 12022.5, as well as in a manner described in each of the three firearm enhancements set forth in Penal Code section 12022.53.2

We granted the People’s petition for review in order to resolve a conflict regarding the question of whether, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be stayed or stricken. For the reasons set forth below, we construe section 12022.53 to require that, after a trial court imposes punishment for the section

Page 1123

12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed. For a different reason, however, we do not have cause to reverse the Court of Appeal’s judgment insofar as it directed otherwise.3


Gonzalez hired defendant to guard his marijuana gardens. For that purpose, Gonzalez gave defendant a shotgun and told him to shoot anyone who came near the gardens. In October 2000, defendant twice fired a shotgun at William Hunt, who was hunting with his children near Gonzalez’s marijuana plants. Hunt was hit in the wrist and in his midsection.

In conjunction with its guilty verdict as to the count that charged the attempted premeditated murder of Hunt (§§ 187, 664), the jury found true the firearm enhancements of subdivisions (b), (c), and (d) of section 12022.53 and the firearm enhancement in section 12022.5, former subdivision (a)(1) (as amended by Stats. 1999, Ch. 129, §5).4 Defendant received an indeterminate life sentence with the possibility of parole for the substantive crime. The trial court imposed an unstayed additional and consecutive term of 25 years to life for the 12022.53(d) firearm enhancement. It then sentenced defendant on the remaining firearm enhancements, but stayed execution of those sentences pending “successful completion” of the sentence previously imposed “[b]y virtue and operation of law under Penal Code section 654.”5 On appeal,

Page 1124

defendant claimed all of the remaining prohibited firearm enhancements must be stricken. A majority of the Court of Appeal agreed with defendant and held that the remaining firearm enhancement findings “must be stricken,” rather than imposed and then stayed. Their opinion directed the trial court to strike those findings and vacate the related sentences.6 The majority disagreed, in part, with People v. Bracamonte (2003) 106 Cal.App.4th 704 [131 Cal.Rptr.2d 334] (Bracamonte), which had, on similar facts, concluded that the prohibited section 12022.53 firearm enhancements must be imposed and then stayed, but that the prohibited section 12022.5 firearm enhancement must be stricken. (Bracamonte, at pp. 711-712.) In this court, defendant contends the remaining firearm enhancements must be stricken or reversed, while the People contend they should be imposed and then stayed.


A. Background

“By definition, a sentence enhancement is ‘an additional term of imprisonment added to the base term.’ ” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898 [135 Cal.Rptr.2d 30, 69 P.3d 951], quoting Cal. Rules of Court, former rule 4.405(c), now rule 4.405(3).) The statutes at issue here, sections 12022.5 and 12022.53, provide various sentence enhancements for the use of a firearm in the commission or attempted commission of a crime.

Section 12022.5(a) provides for a sentence enhancement of three, four, or 10 years for personal use of a firearm in the attempted commission of any felony.

Section 12022.53 sets forth the following escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies, including attempted premeditated murder: a 10-year prison term for personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a 20-year term if the defendant “personally and intentionally discharges a firearm” (id., subd. (c)); and a 25-years-to-life term if the intentional discharge of the firearm causes “great bodily injury” or “death, to any person other than an accomplice” (id., subd. (d)). For these enhancements to apply, the requisite facts must be alleged in the information or indictment, and the defendant must admit those

Page 1125

facts or the trier of fact must find them to be true. (§ 12022.53(j); People v. Najera (1972) 8 Cal.3d 504, 509-510 & fn. 4 [105 Cal.Rptr. 345, 503 P.2d 1353].)

Section 12022.53(f) provides, in part, that “[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” (Italics added.)

Section 12022.53(h) provides, “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”

Section 12022.5(c) was amended in 2002 to include language identical to the language in section...

To continue reading