Superior Court of San Diego County, No. SCD212126, Charles G. Rogers, Judge. Court of Appeal, Fourth Appellate District, Division One, No. D057392.
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Sharon M. Jones and Arthur Martin, under appointments by the Supreme Court, for Defendant and Appellant Down George Yang.
Laura P. Gordon, under appointment by the Supreme Court, for Defendant and Appellant Eric Hung Le.
Kamala D. Harris, Attorney General, Dane R. Gilette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General; Bonnie M. Dumanis, Distirct Attorney, Laura Tanney, James E. Atkins, Craig E. Fisher and Frank Jackson, Deputy District Attorneys, for Plaintiff and Respondent.
Opinion by Cantil-Sakauye, C. J., with Werdegar, Corrigan, Liu, Cuéllar, and Kruger, JJ., concurring. Dissenting opinion by Chin, J.
CANTIL-SAKAUYE, C. J.
[189 Cal.Rptr.3d 167] In People v. Rodriguez (2009) 47 Cal.4th 501 [98 Cal.Rptr.3d 108, 213 P.3d 647] ( Rodriguez ), we held that a defendant's single act of personally using a gun during the commission of a felony could not be used to support both a sentence enhancement for personal use of a firearm under Penal Code section 12022.5, former subdivision (a)(1),  and to elevate the punishment for a criminal street gang allegation to a " violent felony" under [351 P.3d 296] section 186.22, subdivision (b)(1)(C). We explained that the application of both enhancements in that case depended on the defendant's use of a firearm, and that subdivision (f) of section 1170.1 prohibits imposing two sentence enhancements when both enhancements are " 'for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense.'" ( Rodriguez, supra, at p. 508, quoting § 1170.1, subd. (f), italics omitted.)
We granted review in this case to decide whether section 1170.1, subdivision (f) also precludes a trial court from imposing both a firearm enhancement under section 12022.5, former subdivision (a)(1), and a gang enhancement under section 186.22, subdivision (b)(1)(B), in connection with a single offense, when the offense is a " serious felony" under section 186.22, subdivision (b)(1)(B) and involved the use of a firearm. In the present case,
because both enhancements again depend on defendant's firearm use, we conclude that section 1170.1, subdivision (f) bars the imposition of both enhancements.
I. Factual and Procedural Background
On June 14, 2002, defendants Eric Hung Le and Down George Yang of the Tiny Oriental Crips street gang committed a drive-by shooting outside a San Diego pool hall, believing that they were aiming at rival Asian Crips gang members. Instead, two bullets wounded members of a completely different gang, and a third bullet killed the owner of the pool hall, Don Su.
Following a jury trial, defendants were convicted of murder (§ 187, subd. (a); count 1); attempted willful, deliberate and premeditated murder (§ § 664, 187, subd. (a); count 2); discharging a firearm from a motor vehicle (former § 12034, subd. (d); count 3); and assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5). The jury also found true that the crimes in counts 1 through 5 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission, at least one principal used a firearm (§ 12022.53, subds. (d) & (e)(1)); and finally, as to counts 3 and 4, that Yang personally used a firearm (§ 12022.5, former subd. (a)(1)). The verdict reflects that the jury accepted the prosecution's theory that Le was the driver and Yang was the shooter. Le was sentenced to a term of 96 years to life and Yang to a term of 101 years to life.
At issue in this case is the trial court's sentencing of defendant Yang on count 4, assault with a semiautomatic firearm under section 245, subdivision (b). As to this count, the jury found true that defendant Yang committed the assault while personally using a firearm under section 12022.5, former subdivision (a)(1).  This sentence [189 Cal.Rptr.3d 168] enhancement imposes an additional consecutive prison term of three, four, or 10 years.  Also as to count 4, the jury found true that defendant Yang committed the assault for the benefit of a street gang under section 186.22, subdivision (b)(1), but the charging document did not specify whether it should be enhanced as a " serious felony"
(§ 186.22, subd. (b)(1)(B)), which imposes an additional five-year prison term, or as a " violent felony" (§ 186.22, subd. (b)(1)(C)), which imposes an additional 10-year term.
At the sentencing hearing, the parties contested the applicability of Rodriguez to count 4. In Rodriguez, the defendant fired shots at rival gang members, and a jury later found him guilty of assault with a firearm (§ 245, subd. (a)(2)) and made findings under two different sentencing enhancement statutes: (1) that defendant personally used a firearm [351 P.3d 297] (§ 12022.5, subd. (a)) and (2) that he committed a " violent felony" to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). In rejecting the argument that the section 186.22 enhancement applied not only to the defendant's use of a firearm but also to the allegation of committing a felony to benefit a street gang, we explained that the defendant became eligible for the 10-year gang enhancement for a violent felony " only because he 'use[d] a firearm which use [was] charged and proved as provided in ... Section 12022.5.'" ( Rodriguez, supra, 47 Cal.4th at p. 509, quoting § 667.5, subd. (c)(8).) In other words, the only factor that qualified the defendant's assault as a violent felony under section 667.5 was his use of a firearm--and that, in turn, made him eligible for the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) for violent felonies. Because both the section 12022.5 personal use enhancement and the section 186.22 gang enhancement for a violent felony depended on the defendant's use of a firearm, the sentence violated the prohibition contained in section 1170.1, subdivision (f) against enhancing a sentence twice for firearm use. ( Rodriguez, supra, at p. 509.)
In the present case, the prosecutor sought to impose the upper term on defendant Yang for count 4; that is, the maximum term of nine years for the assault with a firearm, along with the maximum term of 10 years for the firearm use enhancement under section 12022.5, subdivision (a)(1). But the prosecutor recognized that, if the section 186.22 enhancement were treated as a violent felony under section 186.22, subdivision (b)(1)(C), Rodriguez and section 1170.1, subdivision (f) would apply to bar an additional 10-year enhancement. Accordingly, the prosecutor asked the trial court to treat the section 186.22 enhancement simply as a " gang allegation" that is " not for being armed" and to impose a five-year enhancement under subdivision (b)(1)(B) of that statute. In essence, the prosecutor argued that because the complaint did not specifically allege that the section 186.22 enhancement was a violent felony under subdivision (b)(1)(C) of that statute, it did not constitute an " enhanced gang allegation" based on the use of a firearm. The trial court disagreed. The court believed that, under Rodriguez, it could not impose terms for [189 Cal.Rptr.3d 169] both enhancements because the jury's findings made defendant's assault a violent felony under section 667.5, thereby making the applicable enhancement the same 10-year term under section 186.22, subdivision (b)(1)(C) that was at issue in Rodriguez. Accordingly, the court
imposed the 10-year term for that enhancement, but stayed any sentence enhancement under section 12022.5, subdivision (a). It noted, however, that if the court could have applied that enhancement it would have chosen the upper term of 10 years, based on the nature of the offense.
Defendants appealed their convictions and the People appealed the trial court's decision to stay the enhancement on count 4. The People argued that the trial court should have imposed a five-year enhancement for a serious felony under section 186.22, subdivision (b)(1)(B) because it had been " generically" pleaded in the information without reference to whether it was a serious or violent felony or to the firearm use allegation.
The Court of Appeal affirmed defendants' convictions, and it also affirmed the trial court's stay of the section 12022.5 enhancement. The Court of Appeal applied the holding of Rodriguez, concluding that the generic pleading of the gang enhancement allegation in the present case was a " distinction without a difference," and it held that the record supported the finding that the personal gun use and gang enhancements were both based on firearm use involving the single offense of assault with a semiautomatic weapon.
We granted the People's petition for review.
A. Overview of the Applicable ...