Sentence enhancements:
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 subjecting him to an additional 20-year prison term
under the sentence enhancement provision of section 12022.53(c); in the
companion case of People
v. Rodriguez (Aug. 20, 2009, S159497) ___ Cal.4th ___, we hold that
the trial court should not have imposed sentence enhancements both for the defendant’s personal
firearm use (§ 12022.5, subd. (a)) and for committing a violent felony to
benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)), because the
crime committed in that case was a violent felony only because the defendant
personally used a firearm in committing it; this case bears a superficial
similarity to People v. Rodriguez,
supra, ___ Cal.4th ___: each involves the interrelationship of a
provision pertaining to firearm use (§ 12022.53 in this case,
§ 12022.5 in Rodriguez) with a
provision pertaining to criminal street gangs (§ 186.22(b)(4) in this
case, § 186.22, subd. (b)(1)(C) in Rodriguez). But the issue in Rodriguez — whether the trial court properly imposed two sentence enhancements
(§ 12022.5 and § 186.22, subd. (b)(1)(C)) based on the defendant’s
personal firearm use — is unlike this case, because here the issue is whether
the trial court properly imposed a sentence enhancement (§ 12022.53) in
conjunction with an alternate penalty
provision (§ 186.22.(b)(4)) (fn. 3); Briceno addressed two statutes — one stating that a felony
committed to benefit a criminal street gang is a serious felony (§ 1192.7(c)(28)),
the other stating that a serious felony committed to benefit a criminal street
gang is subject to additional punishment (§ 186.22, subd. (b)(1)(B)) — and
Briceno concluded that when the
former statute applies, the latter does not.
Similarly, in Arroyas the
Court of Appeal addressed two subdivisions of section 186.22 — one stating that
a misdemeanor committed to benefit a criminal street gang may be punished as a
felony (§ 186.22, subd. (d)), the other stating that a felony committed to
benefit a criminal street gang is subject to additional punishment
(§ 186.22, subd. (b)(1)) — and Arroyas
concluded that when the former subdivision applies, the latter does not; but
unlike the provisions at issue in Briceno,
supra, 34 Cal.4th 451, and in Arroyas, supra, 96 Cal.App.4th 1439, which were all enacted through a single
initiative (Prop. 21), here the two provisions in question — section
186.22(b)(4) and section 12022.53(c) — appear in separate statutes enacted at
different times. And unlike the provisions
at issue in Briceno and Arroyas, all of which pertained to criminal street gangs, here only one of the
two provisions at issue — section 186.22(b)(4) — pertains to criminal street
gangs. That provision states that
specified conduct (here, shooting at an inhabited dwelling) is, in a specified
circumstance (that is, to benefit a street gang), punishable by a
15-year-to-life sentence, while the other provision at issue —section
12022.53(c) — states that crimes punishable by life imprisonment are, in a specified
circumstance (that is, when committed by personally and intentionally
discharging a firearm), subject to a 20-year sentence enhancement. In this case, defendant is subject to that
additional 20-year term not because he committed a gang-related offense but
because he committed a particularly heinous crime (that is, a crime so serious
that it is punishable by life imprisonment).
For the reasons just discussed, Briceno
and Arroyas do not support
defendant’s argument; definitions (p. 12): defendant is correct that section
186.22(b)(4) is a penalty provision; not a sentence enhancement because it does
not add an additional term of imprisonment to the base term; instead, it
provides for an alternate sentence when it is proven that the underlying offense
has been committed for the benefit of, or in association with, a criminal
street gang. Neither is it a substantive
offense because it does not define or set forth elements of a new crime; but
the life term imposed in Montes under
section 12022.53 was a sentence enhancement,
whereas in this case the life term was imposed under section 186.22(b)(4), a penalty provision. As explained in the text (see p. 14, post), this is an important distinction
(fn. 5); here, defendant committed the felony of shooting at an inhabited
dwelling (§ 246), he personally and intentionally discharged a firearm in
the commission of that felony (§ 12022.53(c)), and because the felony was
committed to benefit a criminal street gang, it was punishable by life
imprisonment (§ 186.22(b)(4)).
Thus, imposition of the 20-year sentence enhancement of section
12022.53(c) was proper (p. 15) (Cal. S. Ct., 31.08.09, P. v. Jones, S148463).
Monday, August 31, 2009
P. v. Jones, S148463
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment