Criminal Appeal

California Trial Courts Have The Discretion To Strike Certain Deadly Weapons Enhancements

After a jury convicted the defendant in this case of robbery and assault charges and found true a special allegation that the defendant personally used a deadly or dangerous weapon in violation of California Penal Code (PC) section 12022(b)(1), the trial court imposed a prison term that included a one-year enhancement for the weapon use. The court also denied Jones’s request to stay or strike the deadly weapon enhancement, stating it lacked discretion to do so.

However, Division Seven of the Second District Court of Appeal concluded that imposition of the one-year enhancement was not mandatory and that trial courts retain the discretion to strike this enhancement in the furtherance of justice pursuant to PC section 1385(c). Therefore, the Court of Appeal remanded the matter in order for the trial court to exercise its discretion whether to impose or strike the enhancement.

In arriving at this result, the Court of Appeal first noted that the inherent authority of trial courts to strike enhancements should not be curtailed without clear proof of legislative attempt to do so. Against this backdrop, the Court rejected the Attorney General's contention that the Legislature's express affirmation of the authority to strike certain enhancements found in other subdivisions of PC section 12022 necessarily means trial courts are divested of this authority with respect to the subdivision at issue in this appeal. At the same time, the Court of Appeal found persuasive the fact that the Legislature has affirmatively stripped trial courts of the authority to strike certain enhancements but has never done so with respect to the deadly weapon enhancement found in PC section 12022(b)(1). In light of the absence of the “clear and unmistakable” intent required to restrict the authority of the trial court to consider, in its discretion, striking the one-year deadly weapon-use enhancement imposed under section 12022, subdivision (b)(1), the Court of Appeal ultimately determined that trial courts do have such authority.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

People v. Jones, no. B193759 (Cal.Ct.App. (2nd Dist., Div. 7) filed 12/17/07)

Firearm Sentence Enhancements Not Subject To Prohibition Against Multiple Punishment

Accoridng to California Penal Code section 654 (PC 654), an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision but not both. The ban on multiple punishment applies not only when there is one act in the ordinary sense, but also when the crimes arise as the result of an indivisible course of conduct.

California Penal Code section 12022.53 (PC 12022.53) provides substantial sentence enhancements for using a firearm in the commission of certain felonies.

In this case, the trial court imposed three enhancements pursuant to PC 12022.53 based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. The defendant argued - and the Court of Appeal agreed - that PC 654 required the trial court to stay all but one of the sentence enhancements.

In a unaninous opinion, however, the California Supreme Court held that the sentence enhancement provisions of PC 12022.53 are not limited by the multiple punishment prohibition of PC 654. In the Supreme Court's view, the Legislature made clear that it intended to create a sentencing scheme unfettered by PC 654 when in enacted PC 12022.53.

Importantly, though, the Supreme Court once again stopped short of embracing the Attorney General's far-reaching argument that PC 654 never applies to sentence enhancements. Instead, it opted to "leave that question for another day." To be continued...

The unanimous opinion was authored by Justice Corrigan.

People v. Palacios, no. S132144 (Cal. Supreme Ct., filed 7/12/07)

When Multiple Sec. 12022.53 Enhancements Apply to a Count, Only One Shall Be Imposed. Other Enhancements Shall Not Be Imposed At All, I.e. It's Error to Impose, But Stay Additional Enhancements. People v. Woods, no. B165281 (Cal.Ct.App. 2/7, June 28, 2004):

A fair reading of section 12022.53, subdivisions (f) and (h), leads to a result consistent with that legislative intent. Applying subdivision (f), the court must choose the section 12022.53 enhancement to be imposed, that providing the longest term of enhancement. Once that determination has been made, that enhancement, but only that enhancement, must be imposed. Thereafter the trial court may not strike that single applicable enhancement, as to do otherwise would violate subdivision (h). None of the other enhancements may be imposed at all; nor may the other listed enhancements under separate statutory provisions. Only if they are improperly imposed by the trial court need they be stricken by a reviewing court.6 This construction is further in harmony with legislative intent to eliminate certain enhancements where other provisions of law provide for duplicate or more severe enhancements.

"10-20-Life" Times Two.
People v. Oates, no. S106796 (Cal.Supreme Court, Apr. 26, 2004)

Holding: Cal. Penal Code section 654, which bars multiple punishments for the same act, does not bar multiple enhancements under section 12022.53(d)---discharge of a firearm, during a listed felony, causing great bodily injury or death---where the defendant shot two shots at a group of five people, but hit and injured only one. In other words, the court held that the injury to Victim A could be the basis of subdivision (d) 25-to-life enhancements (discharge of a firearm causing great bodily injury) on attempted murder counts of both Victim A and Victim B.

Authoring Justice: Chin

Concurrence: Justice Werdeger (Joined by Justices Kennard and Moreno) concurred. They agreed that the plain language of the statute compelled the result reached by the majority. But she thought this result did not make sense and was probably the result of legislative oversight:

But unlike the majority, I believe the statute’s failure to conform punishment to culpability in this respect is likely the result of oversight rather than legislative intent. Rather than multiple life-term enhancements under section 12022.53, subdivision (d), both common sense and the overall scheme of the 10- 20-life law suggest an assailant who shoots in the direction of several people, but injures only one of them, should receive only one 25-year-to-life enhancement for injuring one victim—while also being severely punished with multiple 20-year enhancements under section 12022.53, subdivision (c), for discharging a firearm in the commission of offenses against the remaining, uninjured victims.

Sufficient Evid. of 2 Counts of Attempted Murder -- Cal.Ct.App. (3d Dist.)

Yesterday, the California Court of Appeal (3d Dist.) held, in the published portion of its opinion in People v. Smith, no. C042876, that the evidence of two counts of attempted murder was sufficient where, as the Court summarized:

In this case, one victim, Karen A., was driving her car. The second victim, her infant son, Renell T., Jr. (the baby), was strapped in a car seat in the back seat right behind Karen, and defendant, Jarmaal Laronde Smith, knew this. Defendant fired a single shot from behind the car. The bullet passed through the rear window, narrowly missed the baby, passed through the headrest on Karen’s seat (but missed her) and lodged in the door of the car.

In the unpublished portion of the opinion, the Court vacated a firearm use enhancement attached to a conviction for discharging a weapon at an occupied vehicle. Such an enhancement cannot apply where firearm use is an element of the substantive charge.

Justice Richard Sims wrote the opinion.