Lead Opinion
Opinion
Under Penal Code section 186.22’s subdivision (b)(4) (hereafter section 186.22(b)(4)),
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.
I
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
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. IIIB, 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.
II
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)
A. Section 186.22
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),
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: [f] (A) The term determined . . . pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] [][] (B) [imprisonment in the state prison for 15 years . . .” (§ 186.22(b)(4), italics added).
B. Section 12022.53
Section 12022.53 imposes increasingly severe sentence enhancements for those who use firearms in the commission of certain felonies listed in subdivision (a) of that section. Among those felonies is “[a]ny felony punishable by death or imprisonment in the state prison for life.” (§ 12022.53, subd. (a)(17), italics added.) Personal use of a firearm while committing such a felony leads to an additional prison term of 10 years. (Id., subd. (b).) Personal and intentional discharge of a firearm (as in this case) results in an additional 20-year prison term. (§ 12022.53(c).) And for personal and intentional discharge of a firearm resulting in death or great bodily injury, there is an additional consecutive prison term of 25 years to life. (Id., subd. (d).)
Here, defendant was convicted of a felony (shooting at an inhabited dwelling) that was punishable by a life term because he committed it to benefit a criminal street gang (§ 186.22(b)(4)). At issue here is whether defendant committed a “felony punishable by” life imprisonment, thereby
Ill
As noted earlier, defendant was convicted of shooting at an inhabited dwelling. (§ 246.) By itself, that felony carries a maximum sentence of seven years in prison. But when, as here, the crime is committed to benefit a criminal street gang, the punishment is life imprisonment, with a minimum parole eligibility of 15 years. (§ 186.22(b)(4).) And when, as here, a defendant personally and intentionally discharges a firearm in the commission of “[a]ny felony punishable by . . . imprisonment in the state prison for life” (§ 12022.53, subd. (a)(17)), section 12022.53(c) requires imposition of an additional 20-year prison term. That is what the trial court imposed here, a ruling that the Court of Appeal upheld.
In challenging the 20-year sentence enhancement, defendant raises three grounds: (1) By imposing the enhancement, the trial court engaged in “impermissible bootstrapping”; (2) the trial court’s finding that defendant shot at an inhabited dwelling (§ 246) to benefit a criminal street gang (§ 186.22(b)(4)) does not transform the section 246 violation and its seven-year maximum prison term into a felony punishable by life imprisonment, because section 186.22(b)(4) sets forth a penalty, not a substantive offense; and (3) the Legislature did not intend section 12022.53’s 20-year sentence enhancement to apply to the crime of shooting at an inhabited dwelling, even when committed to benefit a criminal street gang.
A. Claim, of Impermissible Bootstrapping
Defendant contends that by imposing the 20-year sentence enhancement provided for in section 12022.53(c), the trial court engaged in “impermissible
In Briceno, supra,
At issue in Briceno was whether section 1192.7(c)(28) applied only to the substantive offense of street terrorism described in section 186.22’s subdivision (a), or whether it also applied to felonies that are subject to additional punishment under the latter statute’s subdivision (b)(1). We held that the statute applied to both types of felonies. (Briceno, supra,
Briceno cited with approval the Court of Appeal’s decision in Arroyas, supra,
Defendant here contends that under Briceno, supra,
Defendant’s argument, although superficially appealing, overstates the scope of our decision in Briceno, supra,
But unlike the provisions at issue in Briceno, supra,
B. Claim That Section 12022.53 Does Not Apply to a Sentence of Life Imprisonment Imposed Under a Penalty Provision
As previously explained, a violation of section 246 (shooting at an inhabited dwelling) by itself carries a maximum prison sentence of seven years. But when, as in this case, the crime is committed to benefit a criminal street gang, the provision that comes into play is section 186.22(b)(4), which calls for a term of life imprisonment (with a minimum parole eligibility of 15 years). The Court of Appeal held that this life term triggered the application of section 12022.53(c), which provides for an additional 20-year prison term for personally and intentionally discharging a firearm in the commission of a “felony punishable by death or imprisonment in the state prison for life” (§ 12022.53, subd. (a)(17), italics added). Defendant challenges that holding. He argues that his case does not fall within that provision because his sentence of life imprisonment did not result from his conviction of a felony (shooting at an inhabited dwelling) but from the application of section 186.22(b)(4), which sets forth not a felony but a penalty.
Pertinent here is a decision by the Court of Appeal in People v. Florez (2005)
The Court of Appeal in Florez concluded that the limit on worktime credits in section 2933.1 applied to the defendant in that case, even though his sentence of life imprisonment was attributable to the alternate penalty provision set forth in section 186.22(b)(4). The court held that by committing the crime of shooting at an inhabited dwelling to benefit a criminal street gang, the defendant had committed a felony punishable by imprisonment for life within the meaning of subdivision (c) of section 667.5. (Florez, supra, 132 Cal.App.4th at pp. 318-319.) Here, the Court of Appeal followed Florez, noting that the phrase “felony punishable by . . . imprisonment in the state prison for life” in subdivision (a)(17) of section 12022.53, the provision at issue here, is virtually identical to the statutory phrase at issue in Florez and therefore should be construed similarly. Defendant challenges that conclusion.
Thus, this court in Montes, supra,
Unlike the life sentence of the defendant in Montes, supra,
C. Claim Pertaining to Legislative Intent
Defendant argues that the Legislature did not intend to have section 12022.53’s severe sentence enhancements apply to those who, like him, are convicted of the felony of shooting at an inhabited dwelling (§ 246) for the purpose of benefitting a criminal street gang (§ 186.22(b)(4)).
When the Legislature enacted section 12022.53 in 1997, section 186.22(b)(4) did not contain the current penalty provision calling for life imprisonment for committing the felony of shooting at an inhabited dwelling to benefit a criminal street gang. (That provision was added three years later in an initiative measure, Prop. 21, which, as previously explained, made many changes to laws pertaining to juvenile offenders and to gang-related crimes.) Thus, in 1997 a defendant who shot at an inhabited dwelling to benefit a criminal street gang would not have been subject to section 12022.53’s sentence enhancements, because such conduct was at that time not punishable by imprisonment for life.
As enacted in 1997, the additional punishments called for under section 12022.53 applied to 16 specified felonies (murder, mayhem, kidnapping, robbery, carjacking, felonious assault, assault with a firearm on a peace officer or firefighter, six forms of sexual assault, two forms of assault by a
Defendant here points out that all of the 16 felonies listed in section 12022.53 “entail violence against the person,” and he asserts that when this statute was enacted in 1997 the same was also true of every felony that fell into the statute’s two general categories. But shooting at an inhabited dwelling (§ 246), he argues, is not necessarily a crime of violence against a person, because someone shooting at an inhabited dwelling violates section 246 even when nobody happens to be inside the dwelling. (See § 246 [“As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”].) Thus, defendant reasons, the Legislature must have intended to have section 12022.53’s severe sentence enhancements apply only to those who commit violent crimes against others and not to those shooting at an inhabited dwelling.
Defendant’s argument fails for two reasons. First, he is wrong in asserting that when section 12022.53 was enacted in 1997, every offense to which it applied involved violence against a person. For example, treason (§ 37), which is punishable by death or life imprisonment and thus falls into one of the two general categories set forth in section 12022.53, is neither violent nor directed against a person. This is also true of some forms of aggravated arson. (§ 451.5.) Second, even if, as defendant contends, the offenses covered by section 12022.53 at the time of its 1997 enactment were all violent felonies directed against others, the Legislature did not limit the statute’s reach to such crimes; rather, the Legislature expressly stated in section 12022.53’s subdivision (a)(17) that the statute’s additional punishments apply to any felony punishable by life imprisonment. That phrasing left open the possibility of future enactment of a provision making certain crimes not involving violent acts directed against others punishable by life imprisonment, and thus subject to the additional punishment set forth in section 12022.53. That is precisely what happened in 2000 when the electorate, through Proposition 21, amended section 186.22(b)(4) to provide that certain felonies, including shooting at an inhabited dwelling (§ 246), were punishable by life imprisonment when committed to benefit a criminal street gang. Thus, we reject defendant’s contention that the Legislature’s original 1997 enactment of section 12022.53’s sentence enhancements indicated an intent not to apply them to those who, like defendant here, shoot at an inhabited dwelling to benefit a criminal street gang.
The judgment of the Court of Appeal is affirmed.
George, C. J., Chin, J., Moreno, J., Corrigan, J., and Perluss, J.,
Notes
All statutory citations are to the Penal Code.
For the sake of simplicity, this opinion uses the shorthand phrase “to benefit a criminal street gang” to refer to crimes that, in the statutory language, are 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).)
In the companion case of People v. Rodriguez (2009)
This case bears a superficial similarity to People v. Rodriguez, supra,
Designating a crime as a “serious felony” within the meaning of section 1192.7 has various consequences. For example, a defendant who has a prior conviction for a serious felony and is later convicted of another serious felony is subject to an additional five-year prison term. (§ 667, subd. (a).) A defendant who has a prior serious felony conviction and who is later convicted of any felony is subject to a sentence increase under the “Three Strikes” law. (§ 667, subds. (b)-(i).) And a defendant who commits a serious felony to benefit a street gang is subject to a five-year sentence enhancement under section 186.22’s subdivision (b)(1)(B).
The issue in Montes, supra,
Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
Concurring. — I concur in the result reached by the majority, which permits imposition of a sentence enhancement on defendant pursuant to Penal Code section 12022.53. (All statutory references are to this code.) I write separately because I do not join in the majority’s reasoning.
As the majority explains, “[t]his 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’ [citation], which ‘prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies’ [citation].” (Maj. opn., ante, at p. 570.) Although parsing the provisions of these statutes is tedious, addressing their interplay is not so difficult, for the Legislature has already set the ground rules. Thus, subdivision (e) of section 12022.53 specifically addresses how these two statutes interact. It provides: “(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: H] (A) The person violated subdivision (b) of Section 186.22 [concerning felonies committed for the benefit of a criminal street gang]. [][] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) [that is, the principal used or discharged a firearm, or discharged a firearm causing great bodily injury or death], [][] (2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” (Ibid.)
As can be seen, although the penalties provided in section 12022.53, subdivisions (b) to (d) apply only to those who in the commission of a felony specified in subdivision (a) personally used or discharged a firearm, section 12022.53, subdivision (e) creates an exception to that scheme.
Section 12022.53, subdivision (e) appears to embody completely the Legislature’s intent on the subject of the interplay between sections 186.22 and 12022.53. As a specific provision on this subject, it is determinative. (Cf. Salazar v. Eastin (1995)
I understand, as the majority explains (maj. opn., ante, at pp. 578-579), that subdivision (b)(4)(B) of section 186.22, imposing a life term for some crimes, was enacted after section 12022.53, subdivision (e), but nothing in that circumstance suggests the Legislature intended to alter the scope of section 12022.53, subdivision (e). “The Legislature, of course, is deemed to be aware of statutes . . . already in existence, and to have enacted or amended a statute in light thereof.” (People v. Harrison (1989)
Because the majority affirms the Court of Appeal’s decision, I concur in the result. Unlike the majority, however, I would accord primacy to the specific terms of subdivision (e) of section 12022.53 to justify the conclusion permitting imposition of a 10-20-life enhancement on this defendant.
Appellant’s petition for a rehearing was denied October 28, 2009. Baxter, J., did not participate therein.
By its terms, section 12022.53, subdivision (e), unlike subdivisions (b), (c) and (d), does not require a qualifying offense be also listed in subdivision (a).
By relying on the alleged distinction between a “penalty provision” (also known as an “ ‘alternate penalty’ ” or “ ‘alternate sentence’ ”) and an enhancement (maj. opn., ante, at p. 576), the majority introduces no small amount of uncertainty and inconsistency into the law, for in a companion case filed this same day, the majority purports to disclaim this distinction. (People v. Brookfield (2009)