APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. (Super. Ct. No. SCE222140)
The opinion of the court was delivered by: Benke, Acting P.J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Rudy J. Murillo of mayhem (Pen. Code,*fn1 § 203), assault with caustic acid (§ 244, subd. (a)(1)), arson causing great bodily injury (§ 451, subd. (a)), battery with serious bodily injury (§ 243, subd. (a)) and corporal injury to a cohabitant (§ 273.5, subd. (a)) in connection with his assault on the victim, Sheri Vargas. The jury found true the special allegations, appended to all the charged offenses except the arson offense, that Murillo personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury within the meaning of section 12022.7, subdivision (e) (infliction of great bodily injury under circumstances involving domestic violence) in committing the offenses. The court sentenced Murillo on the mayhem count to the upper eight-year term, plus a consecutive upper five-year term for the great bodily injury enhancement (GBI), plus a consecutive one-year term for the deadly weapon enhancement, for a total term of 14 years.*fn2
On appeal, this court in an unpublished opinion affirmed the convictions and findings,*fn3 but reversed Murillo's upper terms imposed for the mayhem conviction and the GBI enhancement under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. However, following People v. Black (2005) 35 Cal.4th 1238, this court vacated its opinion and affirmed the trial court's judgment in its entirety. Then, under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], which in part overturned Black, the San Diego Superior Court ordered Murillo resentenced. The trial court resentenced Murillo to a 13-year prison term consisting of an eight-year term for the mayhem conviction, a four-year term for the GBI enhancement (§ 12022.7, subd. (e)), and a one-year term for the deadly weapon enhancement (§ 12022, subd. (b)(1)).*fn4
Murillo contends section 654 required the trial court to stay the one-year sentence for the deadly weapon enhancement. We disagree, concluding the imposition of separate and consecutive sentences for the deadly weapon enhancement (§ 12022) and the GBI enhancement (§ 12022.7) is mandated by the provisions of section 1170.1.*fn5
On the day of the assault, Murillo and Vargas consumed about 20 beers each. They began to argue and Vargas gathered her clothes to leave. Murillo grabbed the clothes from Vargas, walked outside, threw the clothes on the ground and sprayed lighter fluid on them. Vargas pushed Murillo and a shoving match ensued. As Vargas advanced on Murillo, he lit the sleeve of her sweater on fire. The fire spread quickly despite their joint efforts to extinguish the flames. Murillo shouted for his father, who brought water and eventually extinguished the flames.
Vargas suffered severe external burn injuries, and also suffered burn injuries to her lungs, trachea and vocal chords. Vargas died from her injuries after Murillo's trial and initial sentencing.
The question presented is whether a court may apply section 654 where enhancements are found true under both section 1170.1, subdivisions (f) and (g).
Murillo focuses on section 654, and frames the issue as one addressing whether section 1170.1, subdivisions (f) and (g) constitute exceptions to the general rule against double punishment. The People respond that section 654 does not apply to enhancements in general because enhancements do not define a crime or offense but instead relate to the penalty to be imposed.*fn6 If section 654 does apply, the People argue it should not apply to section 1170.1.
We believe section 654 does not govern the analysis here. Rather, the clear language of section 1170.1, its legislative history and existing case law support the conclusion that section 1170.1, subdivision (d) presents a directive and subdivisions (f) and (g) are exceptions to that directive. We additionally conclude subdivision (a) of section 1170.1 applies section 654 to formulating the aggregate sentence. Moreover, although section 654 does not limit the enhancements expressed in section 1170.1, subdivisions (f) and (g), those enhancements may be stricken under proper application of section 1385.
A. The Statutory Language
"The first principle of statutory interpretation requires that we turn initially to the words of the statute to ascertain the Legislature's intent. '[I]f " 'the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citation.] The plain language of the statute establishes what was intended by the Legislature.' " [Citation.]' " (People v. Palacios (2007) 41 Cal.4th 720, 728 (Palacios).)
We begin by noting section 1170.1, subdivision (d) states that when a court imposes a prison sentence pursuant to section 1170 or subdivision (b) of section 1168, "the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements." (Italics added.)
There are exceptions to this directive. Section 1170.1 subdivision (f) provides: "When two or more enhancements may be imposed for being armed with or using a deadly or dangerous weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury."
Likewise, section 1170.1 subdivision (g) provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, ...