PROCEDURAL BACKGROUND
On May 20, 2004, an information was filed charging appellant Canesha Sherron Sinclair in counts 1 through 10 with robbery (Pen. Code, § 211) and in count 11 with assault with a firearm (Pen. Code, § 245, subd. (a)(2)). 1 The information alleged under each count that the offense had been committed in association with, and for the benefit of, a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal had been armed with a firearm (§ 12022, subd. (a)(1)); in addition, the information alleged under counts 1 through 10 that a principal had personally used a firearm (§ 12022.53, subds. (b), (e)(1)). Appellant pleaded not guilty and denied the allegations.
Yuseff Sinclair, who was also charged with the robberies alleged against appellant in counts 9 and 10 and related offenses, was tried with appellant. 2 Trial by jury began on February 8, 2007. Prior to the submission of the case to the jury, the information was amended to charge appellant with an additional count (count 12) of assault with a firearm (§ 245, subd. (a)(2)), accompanied by gang and armed principal allegations (§§ 186.22, subd. (b)(1)(A), 12022, subd. (a)(1)). Appellant pleaded not guilty to the new charge. The jury found appellant guilty as charged in the information, as amended, and found the special allegations to be true. The trial court imposed an aggregate sentence of 44 years four months.
FACTS *
DISCUSSION
Appellant contends that (1) there is insufficient evidence to support the findings regarding the gang enhancements on counts 1 through 8, and (2) there was sentencing error.
A. Gang Enhancements *
Appellant contends the trial court erred in imposing sentence. The trial court sentenced appellant to a term of imprisonment totaling 44 years four months. Regarding count 1, the trial court struck the firearm use enhancement (§ 12022.53, subds. (b), (e)(1)), and imposed a sentence of three years, plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and a one-year armed principal enhancement (§ 12022, subd. (a)(1)). Regarding counts 2 through 10, the trial court struck the gang enhancements (§ 186.22, subd. (b)(1)(C)) and the armed principal enhancements (§ 12022, subd. (a)(1)). On each of counts 2 through 8, the trial court imposed a consecutive sentence of one year, plus three years four months for the firearm use enhancement (§ 12022.53, subds. (b), (e)(1)); on each of counts 9 and 10, the trial court imposed a concurrent sentence of three years, plus a 10-year firearm use enhancement (§ 12022.53, subds. (b), (e)(1)). Finally, on each of counts 11 and 12, the trial court imposed a concurrent sentence of three years, plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and a one-year armed principal enhancement (§ 12022, subd. (a)(1)). 14
1. Count 1 (Robbery of Manuel Peraza)
Appellant contends that the trial court erred in imposing sentence on count 1. She argues that the trial court was obliged to impose a 10-year enhancement for firearm use pursuant to section 12022.53, subdivisions (b)(1) and (e), rather than a 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C), and thus the additional one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1) must be stayed or stricken. For the reasons explained below, we conclude that the trial court was required to impose the 10-year firearm use enhancement, and to impose and stay the one-year armed principal enhancement; in addition, we conclude that the matter must be remanded to the trial court to determine whether to impose and stay the 10-year gang enhancement.
We begin by addressing the gun use enhancement. Subdivisions (b)(1) and (e)(1)(A) of section 12022.53 establish a 10-year enhancement for
any
principal involved in a violation of section 186.22, subdivision (b), as long as
The key issue is whether the phrase “another enhancement” in subdivision (j) of section 12022.53 permitted the trial court to impose the greater punishment authorized by a
combination
of enhancement provisions—that is, section 186.22, subdivision (b)(1)(C), and section 12022, subdivision (a)(1)—in lieu of the 10-year firearm use enhancement under section 12022.53, subdivisions (b) and (e)(1). No court has addressed this question. Generally, in construing a statute, we look first to the plain language of the statute, viewed in context.
(People
v.
Gonzalez
(2008)
The conclusion that the phrase “another enhancement” does not encompass combinations of enhancements finds additional support from
People v. Shabazz
(2006)
Regarding the remaining enhancements, our Supreme Court recently explained in Gonzalez that when a section 12022.53 enhancement must be imposed, the trial court is obliged to impose and stay an additional enhancement under section 12022.5. Subdivision (f) of section 12022.53 provides: “An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” The court in Gonzalez determined that the term “impose,” as found in subdivision (f) and other portions of section 12022.53, means “impose and then execute,” and thus held that when the trial court imposes a section 12022.53 enhancement, it must impose and stay an additional enhancement under subdivision 12022.5. (Gonzalez, supra, 43 Cal.4th at pp. 1127-1130.) The court reasoned that its construction of subdivision (f) best promoted the legislative purposes underlying section 12022.53, namely, the deterrence and punishment of gun violence. (Gonzalez, at p. 1129.) Under Gonzalez, the trial court was obliged to impose and stay the one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1).
In view of Gonzalez, we also conclude that subdivision (e)(2) of section 12022.53 authorized—but did not oblige—the trial court to impose and stay the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). Subdivision (e)(2) provides that such enhancements “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.” (Italics added.) Because the jury made no finding that appellant personally used a gun in connection with the robbery charged in count 1, we must interpret the language italicized above, with an eye to harmonizing section 12022.53 internally and facilitating legislative intent (Gonzalez, supra, 43 Cal.4th at pp. 1125-1126). As the italicized language is similar to that interpreted in Gonzalez, subdivision (e)(2) of section 12022.53 authorized the trial court to impose and stay the gang enhancement on count l. 16
2. Counts 11 and 12 (Assault with a Firearm on Ricardo Reyes and April Pope)
Appellant contends the trial court erred in imposing sentence on counts 11 and 12. She argues that the underlying offense, namely, assault with a deadly weapon (§ 245, subd. (a)(2)), involved personal use of a firearm as an element, and thus the trial court improperly imposed a one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1). In addition, she argues that because the underlying offense is a serious felony (§ 1192.7, subd. (c)(23)), rather than a violent felony (§ 667.5, subd. (c)), the trial court could properly impose only a five-year gang enhancement pursuant to subdivision (b)(1)(B) of section 186.22. In our view, these contentions are correct.
Subdivision (a)(1) of section 12022 authorizes a one-year enhancement for the use of a firearm in the commission of a felony, “unless the arming is an element of that offense.” Under section 245, subdivision (a)(2), “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years . . . .” Accordingly, to establish a conviction under this
Subdivision (b)(1)(B) of section 186.22 authorizes a five-year enhancement when the underlying offense is a “serious felony,” as defined in section 1192.7, subdivision (c); in addition, subdivision (b)(1)(C) of section 186.22 authorizes a 10-year enhancement when the underlying offense is a “violent felony,” as defined in section 667.5, subdivision (c). Subdivision (c)(23) of section 1192.7 includes as a serious felony “any felony in which the defendant personally used a dangerous or deadly weapon,” and thus encompasses assault with a firearm (see
People v. Maldonado,
supra,
3. Other Errors
In view of our conclusions regarding count 1 (see pt. B.I., ante), the trial court erred in imposing sentence on counts 2 through 10. Regarding these counts, the trial court struck the gang enhancements (§ 186.22, subd. (b)(1)(C)) pursuant to section 12022.53, subdivision (e)(2), and the armed principal enhancements (§ 12022, subd. (a)(1)), pursuant to section 12022.53, subdivision (f). For the reasons explained above, the trial court was obliged to impose and stay the armed principal enhancements, rather than strike them, and to impose and stay the gang enhancements, unless it struck the enhancements under section 186.22, subdivision (g). We also note that the abstract of judgment recites no sentence for count 12. The abstract of judgment must be amended to correct this error.
DISPOSITION
The judgment is reversed with respect to the sentence, and the matter is remanded to the trial court with the following directions: on count 1, to impose a 10-year gun use enhancement (§ 12022.53, subds. (b), (e)(1)),
Epstein, P. J., and Willhite, J., concurred.
Appellant’s petition for review by the Supreme Court was denied December 17, 2008, S167665.
Notes
All further statutory citations are to the Penal Code unless otherwise indicated.
While the jury was deliberating, Yuseff Sinclair entered into a plea agreement that resolved the case against him. He is not a party to this appeal.
See footnote, ante, page 848.
In pronouncing sentence on counts 11 and 12, the trial court stated that it was imposing gang enhancements under subdivision (b)(1)(A) of section 186.22, which provides for a maximum enhancement of four years. The parties do not dispute that the trial court intended to impose the 10-year enhancement authorized by subdivision (b)(1)(C) of section 186.22.
Subdivision (b) of section 12022.53 provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.”
Subdivision (e)(1) of section 12022.53 provides: “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: [f] (A) The person violated subdivision (b) of Section 186.22. [f] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
We recognize that in
People v. Salas
(2001)
Subdivision (g) of section 186.22 provides: “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.”