People v. Rodriguez

• Decision Date: 21 November 2007
• Docket Number: No. B179600.,B179600.
• Citation: 157 Cal.App.4th 14,68 Cal.Rptr.3d 415
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan RODRIGUEZ, Defendant and Appellant.

68 Cal.Rptr.3d 415

157 Cal.App.4th 14

The PEOPLE, Plaintiff and Respondent, v. Juan RODRIGUEZ, Defendant and Appellant.

No. B179600.

Court of Appeal, Second District, Division 4.

November 21, 2007.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

MANELLA, J.

INTRODUCTION

Appellant was convicted of three counts of assault with a firearm, after he fired upon three victims during a single incident. The jury found true the special allegations that appellant had personally used a firearm and that he had committed the offenses "for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members." The trial court imposed a four-year firearm enhancement as to each count under Penal Code section 12022.5.¹ The court also imposed a gang enhancement pursuant to section 186.22, subdivision (b)(1), choosing the 10-year enhancement of subdivision (b)(1)(C), which is imposed when the underlying offense was a "violent felony" as defined in section 667.5. As relevant here, section 667.5, subdivision (c)(8), defines a violent felony as any felony in which the defendant uses a firearm as pled and proven pursuant to section 12022.5. Appellant contends the imposition of the two enhancements based upon the same firearm use violated section 654's prohibition against multiple punishments for the same act. We agree and modify the judgment to stay execution of the enhancements imposed under section 12022.5.

BACKGROUND

On August 18, 2002, appellant fired multiple shots at Miguel Rodriguez, Jose Rodriguez and Oscar Rodriguez. Appellant was convicted of three counts of assault involving personal use of a firearm (counts 6, 7 and 8 of the information). (§ 245, subd. (a)(2).) The jury found true the special allegation as to each offense that appellant had personally used a handgun within the meaning of sections 12022.5, 1192.7, subdivision (c) and 667.5, subdivision (c). The jury also found true the special allegation that each offense was committed for the benefit of, at the direction of and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1). Appellant was acquitted of the attempted murder of Miguel Rodriguez and of assault with a firearm charged in connection with another shooting on August 19, 2002. The jury was undecided as to other counts, and they were dismissed.

On September 23, 2004, the trial court sentenced appellant to 22 years, 8 months in prison. As to count 6, the court chose the middle term of three years, enhanced by the middle term of four years under section 12022.5, subdivision (a), for the personal use of a firearm in the commission of the offense, and 10 years under section 186.22, subdivision (b)(1)(C), which increases the ordinary gang enhancement to 10 years where the underlying offense was a violent felony, as defined in section 667.5, subdivision (c).

As to count 7, the court imposed a consecutive term of one year (one-third the middle term), plus one year, four months (one-third the middle term under section 12022.5, subdivision (a)), and three years, four months (one third the middle term under section 186.22, subdivision (b)(1)(C)).

The sentence on count 8 was ordered to run concurrently with the sentences on counts 6 and 7. The court imposed the middle term of three years. The sentence was enhanced by four years under section 12022.5, subdivision (a), and 10 years under section 186.22, subdivision (b)(1)(C).

Appellant timely filed a notice of appeal November 10, 2004.

DISCUSSION

Appellant contends the trial court erred in enhancing his sentence as to each count for his firearm use, and also imposing a 10-year gang enhancement relating to violent felonies, due to the same firearm use. Appellant contends his sentence violated section 654, resulting in double punishment for the single act of using a firearm. Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

Appellant's sentence on each of the three counts was enhanced by section 12022.5 for personal firearm use. Under section 12022.5, subdivision (a), "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense."²

Each sentence was further enhanced under section 186.22, subdivision (b)(1), which mandates additional punishment for specified gang involvement. Subdivision (b)(1)(A) provides for an additional punishment of two, three or four years, at the court's discretion. However, subdivision (b)(1)(C) provides for an augmented enhancement of 10 years where the underlying offense is a violent felony as defined in section 667.5. Section 667.5, subdivision (c)(8), defines a violent felony as any felony in which the defendant uses a firearm as pled and proven pursuant to section 12022.5. Because the jury found appellant had used a firearm within the meaning of section 12022.5, the court imposed the augmented gang enhancement of section 186.22, subdivision (b)(1)(C). Thus, appellant's sentence was enhanced under section 12022.5 for the act of using a firearm, and enhanced again under section 186.22, not simply for appellant's gang involvement, but for gang involvement that included the same firearm use.

There is a conflict of authority whether section 654 applies to sentence enhancements. (See generally People v. Arndt (1999) 76 Cal.App.4th 387, 394-396, 90 Cal.Rptr.2d 415 (Arndt), and cases cited therein; 3 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Punishment, § 132, p. 195.) One appellate court concluded that section 654 "is inapplicable to enhancements, because they individually '"`do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.'"'" (People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629 (Boerner), quoting People v. Walker (1976) 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306 (Walker) & People v. Strickland (1974) 11 Cal.3d 946, 961,114 Cal.Rptr. 632, 523 P.2d 672.)

Another court held that section 654 prohibited the imposition of two great bodily injury enhancements for a single act committed on one victim, concluding that the language quoted in Boerner, while correct, was "entirely too broad and was not supported by the authorities cited and quoted out of context." (People v. Moringlane (1982) 127 Cal.App.3d 811, 818, 179 Cal. Rptr. 726 (Moringlane), disapproved on another point in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145, 282 Cal.Rptr. 465, 811 P.2d 757.) We agree. In Walker, upon which Boerner relied, the applicability of section 654 to enhancements was not before the California Supreme Court. Walker merely held that section 12022.5 does not apply to an accomplice who did not personally use a firearm. (Walker, supra, 18 Cal.3d at p. 242, 133 Cal.Rptr. 520, 555 P.2d 306; see Boerner, supra, 120 Cal.App.3d at p. 511, 174 Cal.Rptr. 629.) Further, the Supreme Court quoted People v. Strickland, which did not refer to section 654. (See People v. Strickland, supra, 11 Cal.3d at p. 961, 114 Cal.Rptr. 632, 523 P.2d 672; Walker, at p. 242, 133 Cal.Rptr. 520, 555 P.2d 306.) Moreover, section 654 does not prohibit multiple punishments solely for a crime or offense, as suggested by Boerner's language. (See Boerner, supra, 120 Cal.App.3d at p. 511, 174 Cal.Rptr. 629.) Section 654's prohibition extends to "[a]n act or omission that is punishable in different ways by different provisions of law...." (Italics added.)

Our Supreme Court has recognized, but declined to resolve, the conflict in the appellate courts. (See, e.g., People v. Palacios (2007) 41 Cal.4th 720, 727-728, 62 Cal.Rptr.3d 145, 161 P.3d 519 (Palacios ) ["[W]e need not address the People's argument that section 654 generally does not apply to enhancements. We leave that question for another day"]; People v. Oates (2004) 32 Cal.4th 1048, 1062-1063, 12 Cal.Rptr.3d 325, 88 P.3d 56; People v. Coronado (1995) 12 Cal.4th 145, 157-158 & fn. 8, 48 Cal.Rptr.2d 77, 906 P.2d 1232 (Coronado); see also People v. King (1993) 5 Cal.4th 59, 77, 19 Cal.Rptr .2d 233, 851 P.2d 27 [§ 12022.5].)³ Most recently the Supreme Court has construed language of section 12022.53 as creating an exception to section 654. (Palacios, supra, 41 Cal.4th at pp. 726-728, 62 Cal.Rptr.3d 145, 161 P.3d 519.) As Palacios was decided after briefing in the instant case was complete, we gave the parties the opportunity to file supplemental briefs regarding the effect, if any, of Palacios on the issues in this appeal, either directly or by analogy. Respondent contends Palacios provides no guidance in this case, and respondent's supplemental brief contains no analysis. Appellant, on the other hand, notes that unlike section 12022.53 at issue in Palacios, no exception to section 654 appears in sections 12022.5 or 186.22.

The issue in Palacios was the effect of section 654 on the enhancements created by section 12022.53, applicable to the use of a firearm in the commission of certain enumerated felonies. The court reviewed the language of that statute, and concluded that "in enacting ...