Court: Superior County: Fresno Judge: Ralph Nunez Fresno County Ct.App. 5 F047448 Super. Ct. No. F02671154-3
The opinion of the court was delivered by: Kennard, J.
Filed 08/31/2009 (this opn. precedes companion case, S147980, also filed 08/31/2009)
Under Penal Code section 186.22's subdivision (b)(4) (hereafter section 186.22(b)(4)),*fn1 a defendant who commits specified felonies ―for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members,‖ is punishable by life imprisonment. Under section 12022.53, a 20-year sentence enhancement is imposed on any defendant who ―personally and intentionally discharges a firearm‖ (§ 12022.53, subd. (c), hereafter § 12022.53(c)) in the commission of a ―felony punishable by death or imprisonment in the state prison for life‖ (§ 12022.53, subd. (a)(17), italics added).
Here, defendant was subject to life imprisonment because he committed a specified felony to benefit a criminal street gang. (§ 186.22(b)(4).) At issue is whether defendant committed a ―felony punishable by . . . imprisonment . . . for life‖ (§ 12022.53, subd. (a)(17)), thus triggering application of the 20-year sentence enhancement under section 12022.53(c). The answer is ―yes,‖ as the Court of Appeal concluded.
Defendant is a member of the East Lan Six Deuce Diamond Crips, a criminal street gang in Fresno. After he and fellow gang members exchanged words with a member of a rival gang (the Hoover Crips), defendant fired several shots. One of the bullets went through the window of a nearby apartment building and struck an inner wall, causing wall fragments to fall on a girl sitting in the living room of an apartment.
After a bench trial, the court found defendant guilty of shooting at an inhabited dwelling (§ 246). It also found that defendant committed the crime to benefit a criminal street gang (§ 186.22 (b)(4)), and that in its commission he personally used a firearm (§ 12022.5) which he personally and intentionally discharged (§ 12022.53(c); see also id., subd. (a)(17)). In addition, the court convicted defendant of unlawful possession of a firearm (§ 12021, subd. (c)(1)), finding that he committed this crime to benefit a criminal street gang (§ 186.22(b)(4)); and the court convicted defendant of street terrorism (§ 186.22, subd. (a)).
For the offense of shooting at an inhabited dwelling, defendant received this sentence: seven years in prison for the offense itself, plus a consecutive indeterminate term of life in prison (with a 15-year parole eligibility period) as a sentence ―enhancement‖ based on the finding that the crime was committed to benefit a criminal street gang (§ 186.22(b)(4)), plus a consecutive prison term of 20 years as an enhancement based on the finding that defendant personally and intentionally discharged a firearm in committing the offense (§ 12022.53(c)). The trial court imposed but stayed a 10-year prison term for defendant's personal use of a firearm in committing the crime (§ 12022.5), and it imposed but stayed a three-year prison term for the conviction of street terrorism (§ 186.22, subd. (a)). Finally, the court imposed a concurrent sentence of six years for the crime of unlawfully possessing a firearm. (§ 12021, subd. (c)(1).)
The Court of Appeal vacated the sentence imposed by the trial court and remanded the case for resentencing. It held that the trial court erred when it imposed a seven-year prison term for shooting at an inhabited dwelling and then ―enhanced‖ it with a term of life imprisonment (with a minimum parole period of 15 years) based on the trial court's finding that the crime was committed to benefit a criminal street gang (§ 186.22(b)(4)). What the trial court should have done, the Court of Appeal stated, was to impose as the sentence for shooting at an inhabited dwelling the life term prescribed in section 186.22(b)(4), which is not a sentence enhancement but an alternate penalty. (See pt. III. B., post.) The Court of Appeal also ordered the trial court to strike the stayed 10-year sentence enhancement for personal use of a firearm (§ 12022.5), because this additional punishment may not be imposed when, as here, an enhancement for firearm use is imposed under section 12022.53 (see § 12022.53, subd. (f)).
As relevant here, the Court of Appeal rejected defendant's contention that the trial court erred in imposing a 20-year enhancement for personally and intentionally discharging a firearm. (§ 12022.53(c).) We granted defendant's petition for review.
This case involves the interplay between two highly complex statutes: section 186.22, which targets participants in criminal street gangs, and section 12022.53, also known as ―the 10-20-life law‖ (People v. Oates (2004) 32 Cal.4th 1048, 1052), which ―prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies‖ (ibid, fn. omitted). Below, we summarize the pertinent portions of the two statutes.
The Legislature enacted section 186.22 in 1988, as part of the California Street Terrorism Enforcement and Prevention Act. This complicated statutory scheme became even more complex in 2000, when California's voters passed Proposition 21, an initiative measure that made many changes to laws pertaining to juvenile offenders and to gang-related crimes. Substantially modified was section 186.22. Pertinent here is that statute's subdivision (b), which imposes greater punishment when a crime is committed ―for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.‖ (§ 186.22, subd. (b)(1).)*fn2
Most felonies committed to benefit a criminal street gang are subject to an additional prison term of two, three, or four years, at the trial court's discretion. (§ 186.22, subd. (b)(1)(A).) If the underlying crime is a serious felony, the additional term is five years (id., subd. (b)(1)(B)); if the underlying felony is a violent felony, the additional term is 10 years (id., subd. (b)(1)(C)).
If the felony committed to benefit a criminal street gang is ―a home invasion robbery . . . ; carjacking . . . ; a felony violation of Section 246 [the crime committed here]; or a violation of Section 12022.55‖ (§ 186.22, subd. (b)(4)(B), italics added), the sentence is ―an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . . pursuant to [the determinate sentencing law] for the underlying ...