Supreme Court of California Justia
Citation 47 Cal. 4th 566, 213 P.3d 997, 98 Cal. Rptr. 3d 546

People v. Jones

Filed 8/31/09 (this opn. precedes companion case, S147980, also filed 8/31/09)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S148463
v.
Ct.App. 5 F047448
DANIEL LAQUINN JONES,
Fresno County
Defendant and Appellant.
Super. Ct. No. F02671154-3
____________________________________)

Under Penal Code section 186.22‘s subdivision (b)(4) (hereafter section
186.22(b)(4)),1 a defendant who commits specified felonies ―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,‖ is
punishable by life imprisonment. Under section 12022.53, a 20-year sentence
enhancement is imposed on any defendant who ―personally and intentionally
discharges a firearm‖ (§ 12022.53, subd. (c), hereafter § 12022.53(c)) in the
commission of a ―felony punishable by death or imprisonment in the state prison
for life‖ (§ 12022.53, subd. (a)(17), italics added).
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

1
All statutory citations are to the Penal Code.

1


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
2
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 a concurrent sentence of six years for the crime of
unlawfully possessing a firearm. (§ 12021, subd. (c)(1).)
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. III. B., 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) 32 Cal.4th
1048, 1052), which ―prescribes substantial sentence enhancements for using a
3
firearm in the commission of certain listed felonies‖ (ibid, fn. omitted). Below, we
summarize the pertinent portions of the two statutes.
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), which imposes greater
punishment when a crime is 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)(1).)2
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

2
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).)
4


minimum term of the indeterminate sentence calculated as the greater of: [¶] (A)
The term determined . . . pursuant to [the determinate sentencing law] for the
underlying conviction . . . [or] [¶] (B) [i]mprisonment 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 subjecting him to
an additional 20-year prison term under the sentence enhancement provision of
section 12022.53(c).
III
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
5
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.3 We address these arguments below.

3
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)).
6


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
bootstrapping.‖ He relies primarily on People v. Briceno (2004) 34 Cal.4th 451
(Briceno) and People v. Arroyas (2002) 96 Cal.App.4th 1439 (Arroyas).
In Briceno, supra, 34 Cal.4th 451, we construed the language of section
1192.7‘s subdivision (c)(28) (hereafter section 1192.7(c)(28)), which provides that
a conviction for ―any felony offense [that] would also constitute a felony violation
of Section 186.22‖ is a ―serious felony.‖4 Section 186.22‘s subdivision (a) defines
the substantive offense of street terrorism, while subdivision (b)(1) provides for
additional punishment when a defendant commits a felony for the benefit of a
criminal street gang. The additional punishment is ordinarily a prison term of two,
three, or four years (§ 186.22, subd. (b)(1)(A)), but it is five years when the crime
committed is a serious felony (§ 186.22, subd. (b)(1)(B)).
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, 34 Cal.4th at p. 456.) We cautioned,

4
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).
7


however: ―[W]hile it is proper to define any felony committed for the benefit of a
criminal street gang as a serious felony under section 1192.7(c)(28), it is improper
to use the same gang-related conduct again to obtain an additional five-year
sentence under section 186.22(b)(1)(B). . . . [¶] . . . [N]othing in [the voter
initiative that enacted section 1192.7(c)(28)] . . . suggests an intention of the voters
to bootstrap, in the same proceeding, any felony offense committed for the benefit
of a criminal street gang into a section 186.22(b)(1)(B) offense ‗as a means of
applying a double dose of harsher punishment.‘ ‖ (Briceno, supra, 34 Cal.4th at
p. 465, last italics added; see also People v. Bautista (2005) 125 Cal.App.4th 646,
657 [applying Briceno’s reasoning to strike a sentence enhancement based on
gang-related conduct]; People v. Martinez (2005) 132 Cal.App.4th 531, 535-537
[applying the reasoning of Briceno and Bautista].)
Briceno cited with approval the Court of Appeal‘s decision in Arroyas,
supra, 96 Cal.App.4th 1439. (See Briceno, supra, 34 Cal.4th at p. 465.) In
Arroyas, supra, 96 Cal.App.4th 1439, the Court of Appeal addressed the
interaction between section 186.22‘s subdivision (d), which provides that a
misdemeanor committed to benefit a criminal street gang may, in the trial court‘s
discretion, be punished as a felony, and section 186.22‘s subdivision (b)(1), which
provides that a felony committed to benefit a criminal street gang is subject to an
additional prison term. Arroyas held that when a defendant commits a
misdemeanor to benefit a criminal street gang, the offense may be punished as a
felony under section 186.22‘s subdivision (d), but it is not subject to the additional
penalties of that statute‘s subdivision (b)(1) for felonies committed to benefit a
criminal street gang. Arroyas held that the voters who enacted the initiative that
added subdivision (d) to section 186.22 did not intend ―to bootstrap subdivision
(d) misdemeanors into subdivision (b)(1) felonies.‖ (Arroyas, supra, 96
Cal.App.4th at p. 1445, italics added.)
8
Defendant here contends that under Briceno, supra, 34 Cal.4th 451, and
Arroyas, supra, 96 Cal.App.4th 1439, the trial court may not both (1) ―appl[y] the
gang statute to raise the underlying offense into a more serious category,‖ and
(2) ―use[] the new category to impose an enhancement it could not have applied to
the original, underlying offense.‖ He argues that in his case, (1) the gang statute
was used to elevate the underlying offense of shooting at an inhabited dwelling to
a more serious category (that is, instead of being an offense that at the trial court‘s
discretion is punishable by three, five, or seven years in prison, it became
punishable by a sentence of life imprisonment, based on the trial court‘s finding
that the shooting benefitted a criminal street gang); and (2) because the crime fell
into this more serious category (that is, a crime punishable by life imprisonment) it
in turn became the basis for imposing the 20-year sentence enhancement for
personally and intentionally discharging a firearm. (§ 12022.53(c).)
Defendant‘s argument, although superficially appealing, overstates the
scope of our decision in Briceno, supra, 34 Cal.4th 451, and that of the Court of
Appeal in Arroyas, supra, 96 Cal.App.4th 1439. 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. Thus, both Briceno and Arroyas
considered the interplay between two statutory provisions that impose penalties for
9
committing a crime to benefit a criminal street gang, and each concluded that the
California electorate, which enacted those provisions through an initiative
measure, did not intend to apply both provisions to the same crime.
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.
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
10
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.
Defendant is correct that section 186.22(b)(4) is a penalty provision. A
penalty provision ―sets forth an alternate penalty for the underlying felony itself,
when the jury has determined that the defendant has satisfied the conditions
specified in the statute.‖ (People v. Jefferson (1999) 21 Cal.4th 86, 101.) In Robert
L. v. Superior Court (2003) 30 Cal.4th 894, this court held that another subdivision
of the same statute (§ 186.22, subd. (d)) was a penalty provision, explaining:
―Section 186.22(d) is 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.‖ (Robert L.,
supra, at p. 899.) This is also true of section 186.22(b)(4), the provision at issue
here. (See People v. Briceno, supra, 34 Cal.4th at p. 460, fn. 7 [§ 186.22 (b)(4) ―is
an alternate penalty provision that provides for an indeterminate life sentence for
certain underlying felony offenses that are gang related‖].)
Pertinent here is a decision by the Court of Appeal in People v. Florez
(2005) 132 Cal.App.4th 314 (Florez). As in this case, the defendant in Florez was
convicted of shooting at an inhabited dwelling (§ 246), and the jury found that he
committed the crime to benefit a criminal street gang (§ 186.22(b)(4)), thereby
11
subjecting him to a sentence of life imprisonment (with a 15-year minimum
sentence). At issue was the applicability of section 2933.1, which limits the
amount of worktime credit that can be accrued by a defendant convicted of a
felony listed in subdivision (c) of section 667.5. Among those felonies was ―[a]ny
felony punishable by . . . imprisonment in the state prison for life.‖ (§ 667.5, subd.
(c)(7).)
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.
Defendant relies on this court‘s decision in People v. Montes (2003) 31
Cal.4th 350 (Montes), which, as here, involved the interaction between section
186.22 and section 12022.53. In Montes, the defendant was convicted of
attempted murder; the trial court found that he caused great bodily injury by
personally and intentionally discharging a firearm (§ 12022.53, subd. (d)) and that
he committed the crime to benefit a criminal street gang (§ 186.22). A defendant
falling within the reach of subdivision (d) of section 12022.53 must be given, as
additional punishment, a consecutive sentence of 25 years to life; subdivision
(b)(5) of section 186.22 provides that a defendant who commits ―a felony
12
punishable by imprisonment in the state prison for life‖ to benefit a criminal street
gang must serve at least 15 years before becoming eligible for parole. At issue in
Montes was whether a crime subject to the additional punishment provided for in
subdivision (d) of section 12022.53 is ―a felony punishable by imprisonment for
life‖ within the meaning of subdivision (b)(5) of section 186.22.5 We held that it
was not, explaining that subdivision (b)(5) of section 186.22 ―applies only where
the felony by its own terms provides for a life sentence.‖ (Montes, supra, at
p. 352.)
Thus, this court in Montes, supra, 31 Cal.4th 350, narrowly construed the
statutory phrase, ―a felony punishable by imprisonment for life,‖ which appears in
subdivision (b)(5) of section 186.22, as applying only to crimes where the
underlying felony provides for a term of life imprisonment. (Id. at p. 352.)
Defendant here argues that to be consistent with Montes, we should give the
statutory phrase, ―felony punishable by . . . imprisonment in the state prison for
life,‖ which appears in subdivision (a)(17) of section 12022.53, the same narrow
construction, and that, so construed, it does not include a life sentence imposed
under an alternate penalty provision. We agree with defendant that these statutory

5
The issue in Montes, supra, 31 Cal.4th 350, was in some respects the
reverse of the issue here. In Montes, the trial court imposed a life term under
section 12022.53, and at issue was the applicability of a provision in section
186.22
limiting parole eligibility for any person convicted of a ―felony punishable
by imprisonment . . . for life.‖ Here, by contrast, the Court of Appeal ordered the
trial court on remand to impose a life term under section 186.22, and at issue is the
applicability of language in section 12022.53 imposing additional punishment for
any person convicted of a ―felony punishable by . . . imprisonment . . . for life.‖
(§ 12022.53, subd. (a)(17).) 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.
13


phrases should be construed similarly. But we disagree that, construed narrowly, a
felony that under section 186.22(b)(4) is punishable by life imprisonment is not a
―felony punishable by . . . imprisonment in the state prison for life‖ within the
meaning of subdivision (a)(17) of section 12022.53.
Unlike the life sentence of the defendant in Montes, supra, 31 Cal.4th 350,
which was imposed as a sentence enhancement (a punishment added to the base
term), here defendant‘s life sentence was imposed under section 186.22(b)(4),
which sets forth the penalty for the underlying felony under specified conditions.
The difference between the two is subtle but significant. ―Unlike an enhancement,
which provides for an additional term of imprisonment, [a penalty provision] sets
forth an alternate penalty for the underlying felony itself, when the jury has
determined that the defendant has satisfied the conditions specified in the statute.‖
(People v. Jefferson, supra, 21 Cal.4th at p. 101, italics added and deleted.) 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.
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
14
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 prisoner, and the
holding of a hostage by a prisoner). The statute‘s additional punishments also
applied to two general categories of felonies (attempts to commit any of the
specified felonies other than assault, and felonies punishable by death or
imprisonment for life). This list of qualifying offenses has not changed since
section 12022.53 was enacted. (See § 12022.53, subd. (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.
15
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.
16

DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
PERLUSS, J.*

*
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.
17





CONCURRING OPINION BY WERDEGAR, J.
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 pp. 3-4.)
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: [¶] (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
1


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.1 Addressing
offenders who commit an offense that makes them subject to both section 186.22,
subdivision (b) (the California Street Terrorism Enforcement and Protection Act;
hereafter the STEP Act) and the 10-20-life law, section 12022.53, subdivision
(e)(1) permits imposition of the 10-20-life enhancement if a principal in the
qualifying crime personally uses or discharges a firearm. Subdivision (e)(2) of
section 12022.53, in turn, permits imposition of both a STEP Act penalty and a 10-
20-life enhancement for those STEP Act violators who themselves personally use
or discharge a firearm. By clear implication, then, if an offender who is convicted
of violating section 186.22, subdivision (b) did not personally use or discharge a
firearm, he is subject either to the penalty prescribed in the STEP Act or to a 10-
20-life enhancement, but not to both.
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) 9 Cal.4th 836, 857 [―Under well-established principles of

1
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).
2


statutory interpretation, the more specific provision [citation] takes precedence
over the more general one [citation].‖].) Accordingly, to engage, as the majority
does, in endeavoring to answer questions of improper bootstrapping (maj. opn.,
ante, at p. 7), the meaning of ―penalty provisions‖ versus ―enhancements‖ (id. at
p. 11),2 or whether a felony ―punishable by . . . imprisonment in the state prison for
life‖ (§ 12022.53, subd. (a)(17)) includes a crime whose punishment is elevated to
a life term by the STEP Act (maj. opn., ante, at pp. 10-14) is unnecessary. Instead,
we need determine only whether defendant was convicted of a crime to which the
STEP Act applied (he was) and whether he personally used or discharged a firearm
(he did). According to the plain and express terms of subdivision (e)(2) of section
12022.53, then, he is subject to the full force of both penalty statutes.
I understand, as the majority explains (maj. opn., ante, at pp. 14-15), 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) 48 Cal.3d 321, 329; see Fairbanks v. Superior Court
(2009) 46 Cal.4th 56, 62 [same].)

2
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. 11), 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 (Aug. 31,
2009) __ Cal.4th __, __ [pp. 10-13].) I agree the distinction is not useful in this
context and so have signed the majority opinion in Brookfield. But the majority‘s
reliance on it here is troubling, and I do not join such reasoning.
3


CONCLUSION
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.
WERDEGAR, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 10/25/06 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S148463
Date Filed: August 31, 2009
__________________________________________________________________________________

Court:

Superior
County: Fresno
Judge: Ralph Nunez

__________________________________________________________________________________

Attorneys for Appellant:

Candace Hale, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General,
Janet Neeley, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for
Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Candace Hale
P. O. Box 775
San Anselmo, CA 94979-0775
(415) 460-5428

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1670


Petition for review after the Court of Appeal remanded for resentencing and otherwise affirmed a judgment of conviction of criminal offenses. This case includes the following issue: Is a violation of Penal Code section 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(4)(B), a "felony punishable by . . . imprisonment in the state prison for life" within the meaning of section 12022.53, subdivision (a)(17), such that sentence can be enhanced under subdivision (c) of section 12022.53 for the defendant's personal and intentional discharge of a firearm? (See People v. Jefferson (1999) 21 Cal.4th 86, 101;People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 08/31/200947 Cal. 4th 566, 213 P.3d 997, 98 Cal. Rptr. 3d 546S148463Review - Criminal Appealopinion issued

PEOPLE v. BROOKFIELD (S147980)
PEOPLE v. CRUZ (S152272)


Parties
1The People (Plaintiff and Respondent)
Represented by Kathleen Anne McKenna
Office of the Attorney General
2550 Mariposa Mall, Suite 5090
Fresno, CA

2Jones, Daniel Laquinn (Defendant and Appellant)
Salinas Valley State Prison
P. O. Box 1050
Soledad, CA 93960

Represented by Candace Hale
Attorney at Law
P.O. Box 775
San Anselmo, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Kathryn M. Werdegar

Disposition
Aug 31 2009Opinion: Affirmed

Dockets
Dec 4 2006Petition for review to exhaust state remedies filed
  Daniel Laquinn Jones, appellant by Candace Hale, counsel
Dec 6 2006Received Court of Appeal record
  two doghouse
Jan 17 2007Petition for review granted (criminal case)
  Baxter, J., was recused and did not participate. Moreno, J., was absent and did not participate. Votes: George, C. J., Kennard, Werdegar and Corrigan, JJ.
Feb 2 2007Counsel appointment order filed
  Upon request of appellant for apointment of counsel, Candace Hale is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Feb 7 2007Issues ordered limited
  The issues to be briefed and argued in this matter, in which the court granted review on January 17, 2007, are limited to whether a violation of Penal Code section 246 (shooting at an inhabited dwelling) that is committed to benefit a criminal street gang (Pen. Code, section 186.22, subd. (b)(4)(B)), is a "felony punishable by . . . imprisonment in the state prison for life" (Pen. Code, section 12022.53, subd. (a)(17)), such that the sentence for the violation may be enhanced under subdivision (c) of Penal Code section 12022.53 for the defendant's personal and intentional discharge of a firearm. (See People v. Jefferson (1999) 21 Cal.4th 86, 101; People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
Mar 1 2007Request for extension of time filed
  to 4-3-2007, to file appellant's opening brief on the merits.
Mar 5 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including April 3, 2007.
Mar 28 2007Request for extension of time filed
  to and including May 3, 2007 to file appellant's opening brief on the merits.
Apr 9 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the itme to serve and file the opening brief on the merits is extended to and including May 3, 2007.
May 4 2007Opening brief on the merits filed
  Appellant Daniel Laquinn Jones by Candace Hale, Supreme Court appointed counsel. CRC 8.25
May 24 2007Compensation awarded counsel
  Atty Hale
Jun 1 2007Answer brief on the merits filed
  Respondent People by Kathleen A. McKenna, Deputy Attorney General (Filed in Fresno)
Jun 15 2007Request for extension of time filed
  Appellant requesting a 30-day extension to and including July 20, 2007, to file appellant's reply brief on the merits.
Jul 3 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief on the merits is hereby extended to and including July 20, 2007.
Jul 23 2007Reply brief filed (case fully briefed)
  Daniel Laquinn Jones, appellant by Candace Hale, Supreme Court appointed counsel CRC 8.25(b)
Jul 23 2007Request for judicial notice filed (granted case)
  Appellant Daniel Laquinn Jones by Candace Hale, Supreme Court appointed counsel CRC 8.25(b)
Aug 3 2007Received:
  Appellant's Proofs of Service for the Reply Brief on the Merits and the Request for Judicial Notice.
Aug 12 2008Received:
  Letter from Candace Hale, counsel for appellant Jones, indicating her unavailability for oral argument from September 29, 2008, through October 14, 2008.
Mar 3 2009Justice pro tempore assigned
  Perluss, J.P.T. 2/7
Apr 22 2009Case ordered on calendar
  to be argued Tuesday, June 2, 2009, at 2:00 p.m., in Los Angeles
May 29 2009Received:
  Appellant Jones' request to cite additional authorities. Candace Hale, Supreme Court appointed counsel
Jun 1 2009Request for judicial notice granted
  Appellant's request for judicial notice, filed on July 23, 2007 is granted. Baxter, J., was recused and did not participate.
Jun 2 2009Cause argued and submitted
 
Aug 31 2009Notice of forthcoming opinion posted
  To be filed on Monday, August 31, 2009 at 10 a.m.
Aug 31 2009Opinion filed: Judgment affirmed in full
  The Judgment of the Court of Appeal is affirmed. Majority Opinion by Kennard, J. -- joined by George, C.J., Chin, Moreno, Corrigan, JJ. and Perluss, JPT.* Concurring Opinion by Werdegar, J. * 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.
Sep 14 2009Rehearing petition filed
Defendant and Appellant: Jones, Daniel LaquinnAttorney: Candace Hale  
Sep 17 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 30, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.

Briefs
May 4 2007Opening brief on the merits filed
 
Jun 1 2007Answer brief on the merits filed
 
Jul 23 2007Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 6, 2009
Annotated by Jessica Brooks

FACTS:
The defendant, a member of a criminal street gang, fired numerous gunshots into a nearby apartment building after entering into an argument with rival gang members. These gunshots resulted in the injury of a girl privately sitting in her apartment. The defendant was convicted of shooting at an inhabited dwelling: a crime that carries a maximum punishment of seven years. Because this crime was committed to benefit a street gang, the penalties of § 186.22 were imposed. This statute imposes life imprisonment and a minimum parole eligibility of 15 years. Due to the applicability of § 186.22, § 12022.53 also became applicable to the defendant. Under § 12022.53, the lower court imposed an additional 20-year prison term on the defendant because the defendant personally and intentionally discharged a firearm while committing a felony that is punishable by life imprisonment in state prison.

Nov 7, 2009
Annotated by Jessica Brooks

ISSUES:
1) Is the court engaging in impermissible “bootstrapping” by enhancing the initial felony under the gang statute, § 186.22, and then using the resulting crime, which carries a punishment of life imprisonment, to apply the 20-year sentence enhancement statute?
2) Should § 12022.53’s sentence enhancement apply only to crimes that, by themselves, have a penalty of life imprisonment, or should it also apply to crimes, like the one that the defendant committed, that only carry a term of life imprisonment once subjected to other sentence enhancing statutes?
3) Did the Legislature intend to have § 12022.53 apply to the crime of shooting into an uninhabited dwelling when the shooting is committed to benefit gang activity?

Nov 10, 2009
Annotated by Jessica Brooks

HOLDING:
The Supreme Court held that both § 186.22 and § 12022.53 could be applied to the defendant’s sentence. The Supreme Court explained that § 186.22 is neither a sentence enhancement nor a substantive offense. Rather, it is a penalty provision that provides an alternate penalty for the defendant’s initial crime due to its relation to gang activity. Therefore, even though § 12022.53, could not be applied on top of an existing sentence enhancement, § 12022.53’s 20 year extension can be applied here when § 186.22 only “sets forth the penalty for the underlying felony under specified conditions."
The Supreme Court of California supports this decision not only with statutory interpretation, but also with legislative history analysis. § 12022.53 was enacted to impose added severity to sentences imposed for felonies committed with the personal and intentional use of a firearm that are punishable by death or life imprisonment. This statute is intended to apply to crimes that are “particularly heinous.” Because the defendant in this case committed a gang related offense that was entitled to an alternate, more severe, penalty under § 186.22, he was found to have committed a “particularly heinous” crime entitled to an additional 20-year sentence enhancement.