People v. OatesPeople v. Oates
Lead Opinion
Opinion
Penal Code section 12022.53, which is also known as the 10-20-life law, prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies.
We granted review in this case to determine the proper application of these provisions where a defendant fires two shots at a group of five people, but hits and injures only one. The Court of Appeal held that even where such a defendant is convicted of five counts of attempted premeditated murder—one for each person in the group—because only one person has been injured, section 654’s prohibition against multiple punishment for a single act or omission permits imposition of only one subdivision (d) enhancement with respect to a single count. As to the other counts, the Court of Appeal held that subdivision (c) enhancements are proper. We find that the Court of Appeal erred and that imposition of multiple subdivision (d) enhancements is proper under these circumstances. We reverse the Court of Appeal’s judgment insofar as it directed otherwise.
Factual Background
On the afternoon of September 11, 1999, members of the North Side Ontario gang (NSO), including Victor Mendoza, Gustavo Barrera and Walter Ramirez, entered territory claimed by NSO’s rival, the East Side Ontario gang (ESO). Mendoza got
That night, after returning to territory claimed by NSO, Mendoza, Barrera and Ramirez went to the home of another NSO member, Manuel Castrejon. About 10:00 p.m., as Mendoza, Barrera, Ramirez, and Castrejon socialized in front of Castrejon’s house with Jose Gonzalez, another NSO member, a green car drove down the street and stopped in front of the house. Someone inside the car fired two shots at the group, and the car sped away. The first shot hit Barrera in the leg, which had to be amputated as a result.
Shortly after the shooting, a California Highway Patrol officer spotted the dark green car and began pursuit. He saw three people in the car, including defendant in the front passenger seat. The car eventually stopped and its occupants fled on foot. The officer apprehended defendant, who admitted that he had been a passenger in the car. The other occupants were also apprehended and identified as ESO gang members. A subsequent search along the car’s attempted escape route turned up a .44-caliber handgun bearing one of defendant’s fingerprints and containing two empty cartridges and four live rounds. The live rounds were jacketed, hollow-point cartridges, which are designed to mushroom on impact so as to cause more severe injury. One of the rounds had an additional modification that was also designed to inflict more severe injury; an X shape sawed through its nose, resulting in fragmentation upon impact.
Based on these events, the San Bernardino County District Attorney later filed an information charging defendant with, as here relevant, five counts of attempted premeditated murder, one for each person in the group at which he fired. As to each of these counts, the information also alleged enhancements under subdivisions (b), (c), and (d) of section 12022.53. The jury convicted defendant of all five counts and found true all of the associated section 12022.53 enhancement allegations. In sentencing defendant for the attempted murder of Barrera—count 1—the trial court added a subdivision (d) enhancement of 25 years to life to the punishment for the underlying crime. It also imposed a subdivision (b) enhancement and a subdivision (c) enhancement, but “stay[ed]” them pursuant to section 12022.53, subdivision (f). For the attempted murder of Castrejon—count 5—the trial court imposed a consecutive term that included a 20-year subdivision (c) enhancement. It also imposed a subdivision (b) enhancement and a subdivision (d) enhancement, but “stay[ed]” the former “pursuant to” section 12022.53, subdivision (f), and stayed the latter “pursuant to [section] 654.” For the three remaining attempted murder convictions—counts 3, 4 and 6—the court imposed concurrent sentences. Each of those concurrent sentences included a subdivision (b) enhancement and a subdivision (c) enhancement that the court “stayed pursuant to” subdivision (f) of section 12022.53, and a subdivision (d) enhancement that the court “stayfed] . . . pursuant to [section] 654.”
On appeal, defendant argued in part that, as to each attempted murder conviction, instead of imposing three section 12022.53 enhancements and then staying two of the imposed enhancements, under subdivision (f) of section 12022.53, the trial court should have actually imposed only one section 12022.53 enhancement. Although the People agreed with defendant, they asserted that the trial court should have imposed one subdivision (d) enhancement for each conviction and “that the lesser enhancements should
Discussion
In their petition for review, the People challenged the Court of Appeal’s holding that section 654 precludes imposition of separate subdivision (d) enhancements with respect to counts 1 and 5 for the single injury to Barrera. This holding necessarily implicates a threshold question: whether, section 654 aside, section 12022.53 itself calls for imposition of multiple subdivision (d) enhancements based on a single injury. As explained, we conclude that section 12022.53 does call for imposition of multiple subdivision (d) enhancements and that section 654 does not prohibit this result.
A. Imposing Multiple Enhancements Based on a Single Injury Is Proper Under Section 12022.53.
As' with any question of statutory interpretation, in determining whether section 12022.53 calls for imposition of multiple subdivision (d) enhancements, we begin with the language of the statute. (.People v. Acosta (2002)
Notably, the parties here agree that the phrase, “any person other than an accomplice,” does not mean “the victim” of the underlying crime. For example, defendant asserts in his brief that the elements of a subdivision (d) enhancement
Because the requirements of the subdivision (d) enhancement have been satisfied as to each of defendant’s attempted murder convictions, subdivision (f) of section 12022.53 requires that the enhancement be imposed as to each conviction. That subdivision provides in part: “If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” (§ 12022.53, subd. (f).) Defendant argues that we should limit the number of subdivision (d) enhancements imposed “to the same number of great bodily injuries inflicted,” such that he should receive one subdivision (d) enhancement for injuring Barrera and one subdivision (c) enhancement as to each of his remaining attempted murder convictions. However, because the requirements of subdivision (d) have been met as to each conviction, defendant’s solution contravenes the direction of section 12022.53, subdivision (f), that the court “shall impose upon that person the enhancement that provides the longest term of imprisonment.” Had the Legislature wanted to limit the number of subdivision (d) enhancements imposed to the number of injuries inflicted, or had it not wanted subdivision (d) to serve as the enhancement applicable to each qualifying conviction where there is only one qualifying injury, it could have said so.
In this regard, it is significant that the Legislature expressly included in section 12022.53 specific limitations on imposing multiple enhancements, but did not limit imposition of subdivision (d) enhancements based on the number of qualifying injuries. Section 12022.53, subdivision (f), provides in full: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement
Defendant’s construction also contravenes subdivision (h) of section 12022.53. That section provides that, [n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (§ 12022.53, subd. (h).) Because the requirements of the subdivision (d) enhancement are met as to each of defendant’s attempted murder convictions, imposing that enhancement with respect to only one conviction would, contrary to the command of section 12022.53, subdivision (h), effectively strike the subdivision (d) enhancement allegations and findings as to the remaining convictions.
In summary, the statutory provisions discussed above authorize and support imposition of multiple subdivision (d) enhancements under the circumstances here. Defendant cites, and we find, nothing in the statutory language supporting his contrary interpretation.
Although, as defendant notes, the legislative history of section 12022.53 does not directly address the issue here, it generally supports the conclusion that imposing multiple subdivision (d) enhancements is proper under the circumstances here. An uncodified section of the enacting legislation stated: “The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.” (Stats. 1997, ch. 503, § 1, italics added.) Several legislative reports explained that “[t]he purpose of [the statute] is to deter crimes in which a firearm is used and to incapacitate those who use firearms in crimes.” (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 4 (1997-1998 Reg. Sess.) as amended Apr. 28, 1997, italics added; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 4 (1997-1998 Reg. Sess.) as amended Sept. 10, 1997, italics added.) Another report explained: “According to the author [of the statute], ‘For far too long, criminals have been using guns to prey on their victims. [Section 12022.53] will keep these parasites where they belong . . . in jail! The problem is not guns, the problem is gun violence . . . criminals misusing guns to terrorize, injure and kill their victims. . . . With the Three Strikes law, the voters sent a clear message to criminals. With the 10-20-life provisions of [Section 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and
Moreover, the evolution of section 12022.53 during the enactment process suggests that the Legislature did not intend to limit imposition of a subdivision (d) enhancement to the crime involving the person who wás actually injured. As introduced, subdivision (d) applied to anyone who “discharges a firearm, intentionally or accidentally, which proximately causes bodily injury to any other person, in the commission of a [specified] felony.” (Assem. Bill No. 4 (1997-1998 Reg. Sess.) as introduced Dec. 2, 1996, § 2, italics added.) Through amendment, section 12022.53, subdivision (d), was later made applicable to anyone who “in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, to any person other than an accomplice.” (Sen. Amend, to Assem. Bill No. 4 (1997-1998 Reg. Sess.) Sept. 10, 1997, § 3.) Thus, regarding the injuries that would trigger the enhancement, although the Legislature narrowed the initially proposed, all-encompassing category—“any other person”—by excluding injuries to accomplices, it did not limit the category only to injuries to victims.
The legislative history discussed above supports the conclusion suggested by the statutory language itself: that section 12022.53 calls for imposition of multiple subdivision (d) enhancements under the circumstances here. Defendant cites, and we have found, nothing in the legislative history supporting his contrary conclusion.
Moreover, adopting defendant’s construction would create several practical problems. In this case, it is easy to say, in retrospect, that defendant should receive one subdivision (d) enhancement with respect to the attempted murder of Barrera and subdivision (c) “discharge” enhancements with respect to the other attempted murder convictions. However, at the charging stage, the prosecution could not have known whether the jury would convict defendant of all of the crimes alleged or whether, as to the crime involving Barrera, it would convict defendant of some lesser offense that is not a qualifying offense. Given these possibilities, if the prosecution had been permitted to allege the subdivision (d) enhancement only in connection with the crime involving Barrera, then notwithstanding defendant’s infliction of great bodily injury using a gun, defendant could have avoided section 12022.53, subdivision (d), altogether, depending on the jury’s decision regarding the attempted murder of Barrera. This result would unquestionably be contrary to the Legislature’s intent. On the other hand, allowing the prosecution to allege the subdivision (d) enhancement as to all of the crimes, but requiring the court to make an adjustment after the jury returns its verdict, would be contrary to subdivision (h) of section 12022.53; as already noted, that subdivision provides that “[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” Moreover, even after the jury’s verdict, we cannot know which convictions will survive appeal. If a subdivision (d) enhancement may be imposed with respect to only one conviction and that conviction is later overturned on appeal, then a defendant could potentially avoid section 12022.53, subdivision (d), altogether, notwithstanding his infliction of great bodily injury using a gun.
Defendant argues that “anomalies could easily occur” if we conclude that section 12022.53 calls for “multiple enhancements” where only one person is injured. Specifically, he notes that under this construction of the statute, if a defendant shoots someone while attempting to rob a commercial establishment, then the number of subdivision (d) enhancements would fortuitously turn on the number of people in the store who could be considered robbery victims because they were “immediately present and in constructive possession of the intended loot.”
Again, we find defendant’s argument unpersuasive. Contrary to defendant’s assertion, the consequence of our conclusion here—that the number of enhancements imposed may turn on the number of people present during a crime—is neither anomalous nor unique. Indeed, we have similarly construed section 12022.5, which prescribes an enhancement where a person “personally uses a firearm in the commission of a felony or attempted felony.” In In re Tameka C. (2000)
Defendant also argues that we should construe section 12022.53, subdivision (d), like section 12022.7, which, in language similar to section 12022.53, subdivision (d), provides an enhancement for anyone “who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.”
Defendant’s argument is unpersuasive. Notwithstanding his assertions, defendant concedes that “[t]here is ‘no intimation’ in section 12022.7” that “ ‘only one such enhancement could be employed in any given case’ ” where only one person suffers injury. Moreover, defendant cites no case—and we have found none—supporting his construction of section 12022.7. On the other hand, as defendant notes, in People v. Moringlane (1982)
In making his argument, defendant relies on the fact that both section 12022.53, subdivision (d), and section 12022.7 use the phrase, “in the commission of’ a felony. He asserts that this language in section 12022.7 “has not been utilized to encompass an injury to another person as being an ‘injury’ ‘in the commission of a felony’ as to an uninjured victim,” and that it “should not be employed to permit the imposition of an enhancement onto the offense against an uninjured victim based on an injury to a contemporaneous victim.” Similarly, he continues, “nothing in subdivision (d) . . . suggests that,” under the circumstances here, “the injury to the injured victim has occurred ‘in the commission’ of the felony against the uninjured victim to permit a second 25-years-to-life rather than the determinate 20 years.” “[I]n the instant case, it was only in the commission of one of the attempted murders that the discharge of a firearm proximately caused great bodily injury, i.e., the count involving the singularly injured victim.”
Defendant’s argument against imposing multiple subdivision (d) enhancements is unpersuasive.
Based on the preceding analysis, we hold that section 12022.53 calls for multiple subdivision (d) enhancements under the circumstances here.
B. Section 654 Does Not Preclude Imposing Multiple Subdivision (d) Enhancements.
Subdivision (a) of section 654 provides that “[a]n 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.” This provision “protects against multiple punishment, not multiple conviction. [Citation.]” (People v. Harrison (1989)
Defendant argues that, under section 654, his single act of injuring Barrera may not be the basis for imposing multiple subdivision (d) enhancements. As previously noted, the Court of Appeal agreed with defendant. Finding “no language expressly authorizing multiple punishment for identical . . . subdivision (d) enhancements,” the court concluded that “the Legislature did not intend to create an exception to section 654 when applying the identical [great bodily injury] enhancement under section 12022.53, subdivision (d) to separate underlying crimes.”
In support of a contrary conclusion, the People advance several arguments. They argue generally that section 654’s prohibition against multiple punishment “simply . . . does not apply to enhancements.” More specifically, they argue that “the express language of section 12022.53 . . . create[s] a broad exception to” section 654’s prohibition, and that “the legislative history and the policies behind section 12022.53 also support this conclusion.” Finally, they argue that “even if section 12022.53 did not create an exception to the multiple punishment ban of section 654, certainly nothing in section 12022.53 overcomes the long-recognized, judicially-created exception for cases involving multiple victims of violent crime.”
The People’s last argument is dispositive. We have long held that “the
In resolving the issue before us, our application of the “multiple victim” exception in King is particularly instructive. There, after shooting two people while robbing a store, the defendant pleaded guilty to first degree murder and attempted premeditated murder. (King, supra, 5 Cal.4th at p. 63.) At sentencing, the trial court imposed two enhancements—one for each conviction— under section 12022.5, which then prescribed a sentence enhancement for someone who personally used a firearm in the commission or attempted commission of a felony. (King, supra, 5 Cal.4th at pp. 63-64.) On appeal, the court struck the section 12022.5 enhancement imposed for the attempted murder conviction “under compulsion of’ our decision in In re Culbreth (1976)
In Tameka, we applied King to affirm invocation of multiple section 12022.5 enhancements based on a single gunshot. In Tameka, the defendant fired a single shot at three police officers, missing the officers and striking glass in the door of a nearby hotel. (Tameka, supra,
In Tameka, we affirmed the juvenile court’s sentence calculation based on King. We first noted King's holding that “multiple firearm-use enhancements may be imposed pursuant to section 12022.5, subdivision (a), when the defendant uses a firearm in a single, indivisible transaction that results in injury to multiple victims. [Citation.]” (Tameka, supra,
Although we did not specifically mention section 654 in Tameka, our reasoning there makes clear that section 654 principles informed our conclusion that the defendant’s single gunshot justified invoking multiple firearm-use enhancements under section 12022.5. As noted above, in reaching our conclusion, we relied on “the law” that permitted imposition of separate punishment for each separate assault the defendant committed against a different victim by his single act. (Tameka, supra, 22 Cal.4th at p. 199.) The only law to which we could have been referring is the “multiple victim” exception to section 654. Moreover, in noting prior judicial “recognition] that the number of victims exposed to the use of a firearm is relevant to the defendant’s culpability,” we cited King and People v. Alvarez (1992)
Following Tameka and King, we conclude that section 654 does not preclude imposition of multiple subdivision (d) enhancements based on the single injury to Barrera. Under the “multiple victim” exception to section 654, defendant may be punished for each of the attempted murder offenses he committed when he fired at the NSO group. The subdivision (d) enhancements “simply follow from” his convictions on those “substantive offenses.” (Tameka, supra,
Defendant argues that Tameka and King are “inapposite” because they involved section 12022.5 enhancements for “firearm use,” rather than subdivision (d) enhancements for “proximately caused injury.” According to defendant, because “[t]he gravamen of section 12022.5 is firearm use,” imposition of multiple enhancements under that section “is understandable; the firearm is indeed actually and directly being used as to each person.” By contrast, defendant asserts, because “the gravamen for section 12022.53, subdivision (d) is injury,” where but “a single injury” occurs, one subdivision (d) enhancement of 25 years to life is appropriate. Based on this distinction, defendant argues that rather than follow King and Tameka, we should follow decisions involving other enhancements for infliction of bodily injury, principally Moringlane. There, as here relevant, the defendant fired several shots at a vehicle he was pursuing, missed the vehicle, and hit a child riding in another vehicle. (Moringlane, supra, 127 Cal.App.3d at pp. 815-816.) The court held that although the defendant could be punished for three counts of assault with attempt to commit murder, section 654 “prohibited] the imposition of multiple [bodily injury] enhancements” under section 12022.7 “for the single” injury to the child. (Moringlane, supra,
For several reasons, defendant’s argument fails. First, Moringlane expressly rejected the very distinction underlying defendant’s argument that King and Tameka are inapposite: that, for purposes of applying section 654, infliction of bodily injury and gun use are different. In reaching its conclusion, the Moringlane court noted that “all” of the “controlling” Court of Appeal decisions “dealt with multiple enhancements based on firearm ‘use’ or ‘armed’ allegations” rather than infliction of bodily injury, but found “no meaningful
Defendant’s remaining arguments in support of the Court of Appeal’s decision are also unpersuasive. Based on the language of section 12022.53, subsequent legislative developments and policy considerations, defendant argues that the Legislature did not intend to exempt section 12022.53 from the normal operation of section 654. Defendant’s argument fails because it completely ignores the long-standing rule that the “multiple victim” exception is part of section 654’s normal operation. Indeed, as the People observe, “what is most notable about [defendant’s] brief is what [it] omits. Not once does [it] mention the exception to section 654 for cases involving multiple victims of violent crime.” (Italics omitted.) Thus, even were defendant correct that the Legislature did not exempt section 12022.53 from section 654’s normal operation, the “multiple victim” exception to section 654 permits imposition of multiple
Disposition
The judgment of the Court of Appeal is reversed, and the case is remanded to that court for further proceedings consistent with this opinion, including remanding to the trial court for resentencing in accordance with the views expressed in this opinion.
George, C. J., Baxter, J., and Brown, J., concurred.
Notes
All further statutory references are to the Penal Code. Section 12022.53 was amended after commission of the crimes here at issue. Because those amendments do not affect our analysis, we will quote from the current version of the statute.
At our request, the parties submitted supplemental briefing on the threshold question, which was not raised in the Court of Appeal.
Although the appellate court in Moringlane did not identify the statute that prescribed the bodily injury enhancements at issue, the length of the enhancements the trial court imposed there indicates that the relevant statute was section 12022.7. (.Moringlane, supra,
Although we reject defendant’s reliance on section 12022.7, our holding in this case is limited to the construction of section 12022.53.
Defendant’s statements could be read as arguing more broadly that even where no subdivision (d) enhancement is imposed with respect to a conviction involving the injured party, a subdivision (d) enhancement may not be imposed with respect to a conviction involving an uninjured victim, because an injury to some third person never occurs “in the commission of’ a qualifying crime against an uninjured victim. However, other statements in defendant’s brief clarify that his argument addresses only the imposition of multiple subdivision (d) enhancements.
Moreover, as the People note, Tameka’s holding “would have little utility if [it] were limited to recognizing that multiple enhancements could be imposed under section[] . . . 12022.5, but that these enhancements must thereafter be stayed under section 654.” (Fn. omitted.)
Given our conclusion based on the “multiple victim” exception, we need not address the People’s argument that section 654 does not apply to enhancements, or that the language of section 12022.53 independently creates an exception to section 654.
Moringlane also relied on several Court of Appeal decisions holding that section 654 precludes imposition of multiple gun use enhancements under section 12022.5. (Moringlane, supra,
People v. Reeves (2001)
In a footnote, defendant also asserts that if section 654 “does not proscribe multiple punishment for a single injury,” then the resulting sentence would constitute “unconstitutional, disproportionate punishment” under the United States and California Constitutions. Because defendant “does not expand on the issue with either argument or citation to relevant authority,” we decline to address it. (People v. Hardy (1992)
Concurrence Opinion
I concur in the result reached by the majority and in its conclusion that Penal Code section 12022.53,
In section 12022.53, the Legislature fashioned a carefully calibrated, if severe,
Section 12022.53’s graduated penalties (subds. (b)-(d)) and the limitation of one enhancement per person per crime (subd. (f)) suggest section 12022.53 enhancements were intended to correlate fairly closely with culpability. The interpretation we give the statute today—under which an injury to only one person may give rise to as many subdivision (d)“great bodily injury” enhancements as there were victims of all the underlying offenses—does not serve this purpose well. In the present case, for example, defendant’s punishment would best reflect his culpability were he to receive one subdivision (d) enhancement, for shooting and injuring victim Barrera, and one subdivision (c) enhancement, for firing his gun, as to each of the remaining attempted murders for which he was properly convicted.
By reserving section 12022.53’s most severe punishment for a defendant found to have injured, another by firing a gun, the Legislature clearly invoked the intuitive principle that appropriate punishment is to be measured in part by the harm the actor causes.
The drafters of section 12022.53, subdivision (d), however, did not limit its application to qualifying offenses involving great bodily injury to the victim of the underlying offense, but, rather, offenses in the commission of which the defendant causes great bodily injury to “any person
For the reasons explained above, I suspect section 12022.53 was not meant to authorize imposition of multiple 25-year-to-life enhancements for a single instance of great bodily injury. For whatever reason, however, the Legislature failed to include any clear limitation to this effect in the statute. In such cases, this court is powerless to rewrite the law but must depend on the Legislature to clarify its intent.
Kennard, 1, and Moreno, J., concurred.
Appellant’s petition for a rehearing was denied July 14, 2004.
All further statutory references are to the Penal Code.
Though this “harm doctrine” has been called rationally indefensible (Kadish, Foreword: The Criminal Law and the Luck of the Draw (1994) 84 J. Grim. L. & Criminology 679, 684-695), it nonetheless enjoys “near universal acceptance in Western law” (id. at p. 679) and continues to inform our sense of criminal justice. (See, e.g., Payne v. Tennessee (1991)