IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S106796
v.
Ct.App. 4/2 E029354
JIMMIE LEE OATES,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FWV018708
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.1 Subdivision (b) of the statute provides for
an additional and consecutive 10-year prison term for anyone convicted of a listed
felony “who, in the commission of” that felony, “personally uses a firearm”
(hereafter subdivision (b) enhancement). Subdivision (c) of the statute increases
the added penalty to 20 years if the criminal “personally and intentionally
discharges a firearm” in the commission of the listed crime (hereafter subdivision
(c) enhancement). Subdivision (d) of the statute makes the added punishment “25
1
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.
1
years to life” if the criminal, “in the commission of” the listed felony, “personally
and intentionally discharges a firearm and proximately causes great bodily injury
. . . or death, to any person other than an accomplice” (hereafter subdivision (d)
enhancement). The statute also provides that “[o]nly one additional term of
imprisonment under this section shall be imposed per person for each crime,” and
directs the court to impose “the enhancement that provides the longest term of
imprisonment” where “more than one enhancement per person is found true under
this section.” (§ 12022.53, subd. (f).)
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 into a fistfight with an ESO associate. Defendant Jimmie Lee Oates
is an ESO member.
That night, after returning to territory claimed by NSO, Mendoza, Barrera
and Ramirez went to the home of another NSO member, Manuel Castrejon. At
2
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
3
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 “stay[ed] . . . 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 have been stricken.” Thus,
the People argued, with respect to count 5, the trial court should have imposed a
subdivision (d) enhancement instead of a subdivision (c) enhancement. The Court
of Appeal agreed with defendant that, under subdivision (f) of section 12022.53, it
had to “strike all section 12022.53 enhancements imposed . . . in excess of one per
crime” and impose “only the greatest enhancement” applicable under that section.
The Court of Appeal also agreed with defendant that section 654 precludes
imposition of two subdivision (d) enhancements—one for count 1 and one for
count 5—based on the single injury to Barrera. Thus, the Court of Appeal
concluded, with respect to count 5, the trial court properly imposed a subdivision
(c) enhancement instead of a subdivision (d) enhancement. However, the Court of
4
Appeal continued, subdivision (f) of section 12022.53 required the trial court to
strike the impermissible subdivision (d) enhancement rather than stay it, “since the
court also imposed a [subdivision (c) enhancement] on the same count.” We then
granted the People’s petition for review.
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.2
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) 29 Cal.4th
105, 112.) In several respects, the language of section 12022.53 supports
imposing multiple subdivision (d) enhancements under the circumstances here.
First, by its terms, the subdivision (d) enhancement applies to “any person” who,
“in the commission of” a specified felony, “personally and intentionally
discharges a firearm and proximately causes great bodily injury . . . or death, to
any person other than an accomplice.” (Italics added.) Based on the single injury
2
At our request, the parties submitted supplemental briefing on the threshold
question, which was not raised in the Court of Appeal.
5
to Barrera, the requirements of a subdivision (d) enhancement are met as to each
of defendant’s five attempted murder convictions, including those not involving
the attempted murder of Barrera; attempted premeditated murder constitutes a
specified offense (§ 12022.53, subd. (a)(1), (18)), and, in the commission of each
offense, defendant “personally and intentionally discharge[d] a firearm and
proximately cause[d] great bodily injury” to a person “other than an accomplice.”
(§ 12022.53, subd. (d).)
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
“require the imposition of the enhancement even if the injured person is not a
victim of crime, such as if he or she was injured by a stray bullet.” Thus, “[i]f
there is a qualifying substantive offense, if a firearm is intentionally discharged,
and if anyone (but an accomplice), i.e., either the victim or a nearby ‘non-
victim’—a person who is injured but is not the victim of an enumerated offense—
suffers great bodily injury, the enhancement attaches to the offense.” In other
words, as defendant explains, “the ‘any person other than an accomplice’ language
is sufficiently indisputable to ensure the imposition of the enhancement if a person
other than the victim of the qualifying felony suffers a great bodily injury.” This
reading of the statute is consistent with our recent statement that, as “[a]pplied to a
defendant/shooter, this enhancement is arguably unambiguous: a defendant who
is convicted of a specified felony and is found to have intentionally and personally
discharged a firearm proximately causing great bodily injury or death when
committing that felony, is subject to section 12022.53, subdivision (d).
[Citation.]” (People v. Garcia (2002) 28 Cal.4th 1166, 1173.) It is also consistent
with the fact that the Legislature knows how to limit enhancements to harm done
to a “victim” when that is its intent. (See § 12022.8 [imposing enhanced
6
punishment for “inflict[ing] great bodily injury . . . on any victim”]; see also
People v. Miller (1977) 18 Cal.3d 873, 881, fn. 5 [enhancement statute that
“expressly provides for its application upon great bodily injury to a ‘victim’ rather
than to a ‘person’ ” does not apply “in the case of injury to persons who,
unfortunately, are incidentally caught up in the events constituting the crime”].)
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
7
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 that
provides the longest term of imprisonment. 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. An enhancement for great bodily injury as defined in Section
12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an
enhancement imposed pursuant to subdivision (d).” The enactment of this
subdivision shows that the Legislature specifically considered the issue of multiple
enhancements and chose to limit the number imposed only “for each crime,” not
for each transaction or occurrence and not based on the number of qualifying
injuries. “Under the maxim of statutory construction, expressio unius est exclusio
alterius, if exemptions are specified in a statute, we may not imply additional
exemptions unless there is a clear legislative intent to the contrary. [Citation.]”
(Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230.) Here, there is
no evidence of a contrary legislative intent. Nor is there any reason to believe the
Legislature simply overlooked the kind of factual scenario at issue here, which is
not particularly unusual.
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
8
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 you’re
staying there.” (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 4
9
(1997-1998 Reg. Sess.) as amended Feb. 19, 1997, italics added.) Imposing
multiple subdivision (d) enhancements under the circumstances here clearly serves
these legislative goals.
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 was 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
10
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.
Another practical problem arises if the crime involving the injured person is
not a qualifying crime but the other crimes are. As discussed above, it would be
contrary to the clear statutory language and the Legislature’s intent to hold that
section 12022.53, subdivision (d), does not apply at all under these circumstances,
and even defendant does not take this position. However, if, as defendant asserts,
11
subdivision (d) may be applied to only one crime in this scenario, then as to which
crime should the subdivision (d) enhancement be alleged? If the answer is, all of
them, and the defendant is convicted of all counts, then to which conviction should
the subdivision (d) enhancement attach? And, what happens if that conviction is
reversed on appeal? And, what is the correct procedure where all counts are not
tried together? We would have to read a great deal into the statute in order to
address these practical problems, and the statute’s failure to address any of these
questions is yet another indication that the Legislature did not intend to preclude
imposition of multiple subdivision (d) enhancements under the circumstances
here.
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) 22 Cal.4th 190, 198 (Tameka), we held that multiple
enhancements should be imposed under section 12022.5 where “a single shot
results in offenses being committed against more than one victim and the presence
12
of one of the victims is unknown to the perpetrator.” We based our conclusion on
“[t]he language” of the statute and “the intent of the Legislature in enacting” it.
(Tameka, supra, at p. 196.) We also explained that “a person who engages in an
urban gun battle is more culpable than one who fires a weapon at an isolated
individual” because of the increased “risk of injury to bystanders.” (Ibid.) As
Tameka demonstrates, there is nothing anomalous about applying section
12022.53 in accordance with its language, such that the number of subdivision (d)
enhancements imposed turns on the number of people defendant attempted to
murder. Moreover, as the People note, a trial court can mitigate concerns about
sentencing inequities by imposing concurrent, rather than consecutive, sentences
where multiple subdivision (d) enhancements are found true. Thus, defendant’s
assertion regarding possible sentencing anomalies does not justify departing from
the statutory language.
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.” (§ 12022.7, subd. (a).) According
to defendant, “[n]o reported case has held that more [section 12022.7]
enhancements than the actual number of injuries may be found and imposed” or
that such an enhancement may be found and “imposed not only on [the conviction
involving] the injured victim but also as to [the convictions involving] the
uninjured victims as well.” Defendant argues we should similarly interpret
subdivision (d).
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
13
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) 127 Cal.App.3d 811, 815-817
(Moringlane), the trial court imposed three “bodily injury” enhancements,
presumably under section 12022.7, based on the defendant’s infliction of a single
injury on one of the three people he simultaneously assaulted.3 Although the
appellate court later held that multiple enhancements were improper, it based its
decision on section 654, not on the construction of section 12022.7. (Moringlane,
supra, 127 Cal.App.3d at pp. 817-819.) Moreover, given Moringlane’s holding in
1982 that section 654 bars imposition of multiple enhancements, it is not
surprising that no reported case has considered whether section 12022.7 itself
authorizes multiple enhancements under the circumstances here. Finally,
defendant cites—and we find—nothing in the legislative history of section
12022.7 to support his interpretation of that statute. Because nothing supports
defendant’s construction of section 12022.7, his argument based on that
construction fails.4
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
3
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, 127 Cal.App.3d at p. 816.) Defendant asserts that
Moringlane involved section 12022.7.
4
Although we reject defendant’s reliance on section 12022.7, our holding in
this case is limited to the construction of section 12022.53.
14
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.5 The phrase, “in the commission of” a felony,
cannot mean one thing when a subdivision (d) enhancement is not imposed with
respect to a crime committed against the injured party (for whatever reason), and
something else when a subdivision (d) enhancement is imposed with respect to
such a crime (or with respect to a crime against any other uninjured victim). That
is, whether an injury to a third person occurs “in the commission of” a qualifying
crime committed against an uninjured victim does not depend on whether a
subdivision (d) enhancement is imposed with respect to a crime committed against
anyone else (either the injured victim or another uninjured victim). Thus,
defendant’s focus on the statutory phrase, “in the commission of,” is unavailing.
5
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.
15
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) 48 Cal.3d 321, 335.)
Although it “literally applies only where such punishment arises out of multiple
statutory violations produced by the ‘same act or omission,’ ” we have extended
its protection “to cases in which there are several offenses committed during ‘a
course of conduct deemed to be indivisible in time.’ [Citation.]” (Ibid.)
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
16
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
limitations of section 654 do not apply to crimes of violence against multiple
victims.” (People v. King (1993) 5 Cal.4th 59, 78 (King).) As we have explained:
“The purpose of the protection against multiple punishment is to insure that the
defendant’s punishment will be commensurate with his criminal liability. A
defendant who commits an act of violence with the intent to harm more than one
person or by a means likely to cause harm to several persons is more culpable than
a defendant who harms only one person. For example, a defendant who chooses a
means of murder that places a planeload of passengers in danger, or results in
injury to many persons, is properly subject to greater punishment than a defendant
who chooses a means that harms only a single person. This distinction between an
act of violence against the person that violates more than one statute and such an
act that harms more than one person is well settled. Section 654 is not ‘. . .
applicable where . . . one act has two results each of which is an act of violence
against the person of a separate individual.’ [Citations.]” (Neal v. State of
California (1960) 55 Cal.2d 11, 20-21.) Attempted premeditated murder qualifies
as a crime of violence for purposes of applying this “multiple victim” exception.
(Ibid.; People v. Carter (1995) 41 Cal.App.4th 683, 689, disapproved on another
ground in People v. Deloza (1998) 18 Cal.4th 585.)
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,
17
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) 17 Cal.3d 330 (Culbreth).
(King, supra, 5 Cal.4th at p. 64.) Culbreth had construed section 12022.5 as
permitting only one enhancement, “even if there are multiple counts involving
multiple victims of violent crime, . . . ‘if all the charged offenses are incident to
one objective and effectively comprise an indivisible transaction . . . .’ [Citation.]”
(King, supra, 5 Cal.4th at p. 63.) In King, we overruled Culbreth, finding that its
construction “finds no support in the statutory language.” (King, supra, 5 Cal.4th
at p. 77.) As relevant here, we also explained: “To the extent [the] defendant
contends that [section 654’s] prohibition against multiple punishment mandates
the Culbreth rule, we note . . . that . . . section 654 does not apply to ‘crimes of
violence against multiple victims.’ [Citations.] Here, there were multiple
victims. . . . [¶] . . . [S]ection 12022.5 simply enhances the term to be imposed for
an offense; when multiple terms are imposed for multiple offenses, . . . section 654
exists to limit the number of terms which may be executed. However, as noted,
. . . the limitations of section 654 do not apply to crimes of violence against
multiple victims. The Culbreth decision does not justify a conclusion that the
Legislature intended that a term enhancement be treated more restrictively for
multiple punishment purposes than the term for the underlying offense.” (King,
supra, 5 Cal.4th at p. 78.) Thus, we held that where a defendant commits crimes
of violence against multiple victims, section 654 permits imposition of “a firearm-
use enhancement under section 12022.5 . . . for each separate offense for which
the enhancement is found true.” (King, supra, 5 Cal.4th at p. 79.)
18
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, 22 Cal.4th at p. 192.) The glass shattered and
struck the eye of a child who was inside the hotel. (Ibid.) In a juvenile wardship
proceeding, the court found that by his single shot, the defendant committed four
separate assaults with a firearm, one against each officer and one against the child.
(Ibid.) Based on the defendant’s single use of the firearm, the court also found
that as to each crime, the defendant qualified for an enhancement under section
12022.5. (Ibid.) In calculating the defendant’s maximum period of confinement
with the California Youth Authority, the court included a section 12022.5
enhancement for the assault on one of the officers and a consecutive section
12022.5 enhancement for the assault on the child (reduced pursuant to section
1170.1, subdivision (a)). (Tameka, supra, 22 Cal.4th at pp. 192-193.) On appeal,
the defendant argued that the juvenile court should not have included a second
section 12022.5 enhancement in the sentence calculation. (Tameka, supra, 22
Cal.4th at p. 193.)
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, 22 Cal.4th at p. 193.) We next rejected the
argument that King, which involved a defendant who fired several shots and
injured two people, is inapplicable where only “a single shot facilitates the
commission of more than one felony . . . .” (Tameka, supra, 22 Cal.4th at p. 200.)
“As we explained in King,” under the language of section 12022.5, subdivision
(a), “the sentencing court is not limited to imposing one enhancement per occasion
19
of firearm use, but rather is to impose one enhancement for each felony in which a
firearm has been used. . . . [¶] Under the King rationale, a robber who enters a
convenience store and obtains the valuables of seven patrons with a single display
of a firearm has committed seven robberies, and each felony is subject to
enhancement for use of a firearm. Keeping in mind both the effect on the victims
and the culpability of the defendant, we see no distinction between this situation
and one in which a defendant commits multiple assaults with a single shot from a
firearm.” (Tameka, supra, 22 Cal.4th at pp. 195-196, italics added.) Finally, we
explained that our conclusion was consistent with “the law” that permits
imposition of separate punishment for each “substantive offense.” (Id. at p. 199.)
That law, which “recognize[s] that the number of victims exposed to the use of a
firearm is relevant to the defendant’s culpability [citations]” (id. at p. 200),
justified “the juvenile court’s having sustained the allegations of four assaults with
a deadly weapon on the basis of what may have been only one shot . . . . The use
enhancements simply follow from the allegations having been sustained as to the
substantive offenses of assault with a firearm.” (Id. at p. 196.) They “do not
constitute separate crimes or offenses, but simply are the basis for the imposition
of additional punishment for the underlying substantive offense. [Citation.]” (Id.
at pp. 198-199.) Thus, we held, “[w]hen a defendant commits an assault with a
firearm upon an intended victim, and with the same shot injures an unintended
victim, thereby committing another assault,” his “sentence for each assault [may]
be enhanced by a separate firearm-use enhancement” under section 12022.5,
subdivision (a). (Tameka, supra, 22 Cal.4th at p. 191.)
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,
20
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 “recogni[tion] 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) 9 Cal.App.4th 121. (Tameka, supra, 22 Cal.4th at p. 200.) The
cited passages from these decisions discuss the “multiple victim” exception to
section 654. (King, supra, 5 Cal.4th at p. 78; Alvarez, supra, 9 Cal.App.4th at p.
128.) Thus, implicit in Tameka’s holding is our conclusion that section 654 does
not preclude imposition of multiple enhancements for a single firearm use
involving multiple victims.6
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, 22 Cal.4th at p.
196.) They “do not constitute separate crimes or offenses, but simply are the basis
for the imposition of additional punishment for the underlying substantive offense.
[Citation.]” (Id. at pp. 198-199; see also People v. Mason (2002) 96 Cal.App.4th
1, 15 [enhancements under section 12022.53 “cannot exist independently of the
6
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.)
21
[substantive] counts to which they [are] appended”].) Nothing in section 12022.53
or its legislative history suggests that the Legislature intended to alter operation of
the “multiple victim” exception to section 654, i.e., to treat a term enhancement
“more restrictively for multiple punishment purposes than the term for the
underlying offense.” (King, supra, 5 Cal.4th at p. 78.) On the contrary, by its
express terms, the subdivision (d) enhancement applies “[n]otwithstanding any
other provision of law” to anyone who “in the commission of” a listed felony
“personally and intentionally discharges a firearm and proximately causes great
bodily injury . . . or death, to any person other than an accomplice.” (§ 12022.53,
subd. (d), italics added.) Moreover, as previously explained, although section
12022.53 expressly limits the number of enhancements that may be imposed under
the section “for each crime” (§ 12022.53, subd. (f)), it contains no language
limiting the number of enhancements that may be imposed under the section for
separate crimes against multiple victims. Given that the “multiple victim”
exception and our decision in King predated passage of section 12022.53 in 1997,
the Legislature would have no doubt included such limiting language had it
intended to preclude imposition of multiple enhancements where there are
multiple victims. Moreover, given these same considerations, the Court of Appeal
erred in basing its conclusion on the absence of “language expressly authorizing
multiple punishment for identical . . . subdivision (d) enhancements.” Thus, the
Court of Appeal also erred in concluding that section 654 precludes imposition of
a subdivision (d) enhancement with respect to both counts 1 and 5.7
7
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.
22
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 “prohibit[ed] the
imposition of multiple [bodily injury] enhancements” under section 12022.7 “for
the single” injury to the child. (Moringlane, supra, 127 Cal.App.3d at p. 817.)
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 distinction from that fact so
far as the application of . . . section 654 is concerned.” (Moringlane, supra, 127
Cal.App.3d at p. 819.) In this regard, Moringlane supports application of King
and Tameka here. Second, in construing section 654, Moringlane relied heavily
23
on Culbreth. (Moringlane, supra, 127 Cal.App.3d at pp. 817, 819.) However, as
we explained in King, Culbreth “was solely an interpretation of . . . section
12022.5,” and “was not based on . . . section 654.” (King, supra, 5 Cal.4th at p.
78.) Thus, Moringlane’s analysis is flawed insofar as its application of section
654 rested on Culbreth. Moreover, as previously noted, King overruled Culbreth
and held that section 654 does not preclude imposition of multiple enhancements
under section 12022.5. (King, supra, 5 Cal.4th at pp. 77-78.) As also previously
noted, in Tameka we extended King to affirm invocation of multiple section
12022.5 enhancements based on a single gunshot. (Tameka, supra, 22 Cal.4th at
pp. 191-196.) Thus, Moringlane’s section 654 analysis is inconsistent with our
subsequent decisions in King and Tameka and it hinges on a decision we later
overruled (and which, in any event, did not apply section 654).8 Finally, like the
Court of Appeal here, Moringlane did not even consider whether imposition of
8
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, 127 Cal.App.3d at p. 818 [citing People v. Bush
(1975) 50 Cal.App.3d 168, 178; People v. Lowe (1975) 45 Cal.App.3d 792, 796;
People v. Johnson (1974) 38 Cal.App.3d 1, 11-12].) Like Moringlane, those
Court of Appeal decisions are inconsistent with our subsequent decisions in King
and Tameka, which also involved section 12022.5. Moringlane also relied on our
decision in People v. Miller, supra, 18 Cal.3d 873. (Moringlane, supra, 127
Cal.App.3d at pp. 817, 819.) Insofar as Miller followed Culbreth in holding that
section 12022.5 precludes imposition of multiple enhancements for a single gun
use against multiple victims (Miller, supra, 18 Cal.3d at p. 887), it is irrelevant to
application of section 654 and was implicitly overruled in King. Insofar as Miller
applied section 654, it is consistent with the principle that section 654 does not
prohibit multiple punishment where, by a single act, a defendant “commit[s]
crimes of violence against several victims. [Citations.]” (Miller, 18 Cal.3d at p.
885.)
24
multiple enhancements is permissible under the “multiple victim” exception. For
all of these reasons, defendant’s reliance on Moringlane is unavailing.9
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 subdivision (d)
enhancements under the facts here. Defendant also invokes the so-called rule of
lenity, which “compels courts to resolve true statutory ambiguities in a defendant’s
favor . . . .” (People v. Anderson (2002) 28 Cal.4th 767, 780.) However, that rule
applies “only if two reasonable interpretations of the statute stand in relative
equipoise.” (Ibid.) Because, for the reasons already stated, defendant’s
interpretation is not equally reasonable, the rule of lenity is inapplicable. Thus, we
hold that imposition of a subdivision (d) enhancement is permissible here with
respect to both counts 1 and 5. The trial court’s improper stay, pursuant to section
654, of the subdivision (d) enhancement imposed with respect to count 5 resulted
9
People v. Reeves (2001) 91 Cal.App.4th 14, 56-57, which defendant also
cites and which quoted Moringlane, is inapposite because it involved a single
victim.
25
in an unauthorized sentence and requires that we remand for resentencing.10 (See
People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Perez (1979) 23
Cal.3d 545, 549-555.)
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.
CHIN, J.
10
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) 2 Cal.4th 86, 150.) Moreover, given our conclusion that
a subdivision (d) enhancement is appropriate with respect to both counts 1 and 5,
we also need not consider defendant’s request that we apply section 1170.1 to
reduce the subdivision (c) enhancement the trial court imposed on count 5 from 20
years to six years eight months.
26
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
BROWN, J.
27
CONCURRING OPINION BY WERDEGAR, J.
I concur in the result reached by the majority and in its conclusion that
Penal Code section 12022.53,1 as written, allows imposition of more than one 25-
year-to-life prison term enhancement for a single injury caused by use of a
firearm. 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.
Nevertheless, I agree with the majority that no such restriction appears in the terms
of section 12022.53 and that absent such an express limitation a trial court must
impose as to each qualifying felony, and cannot strike, the longest section
12022.53 enhancement pleaded by the prosecution and found true by the trier of
fact. (§ 12022.53, subds. (f), (h).)
1
All further statutory references are to the Penal Code.
1
In section 12022.53, the Legislature fashioned a carefully calibrated, if
severe, system of additional penalties for use of a firearm in the commission of
specified offenses. Simple use of a firearm, even if not operable or loaded, results
in an additional term of 10 years in prison. (Id., subd. (b).) If the defendant is
found to have personally and intentionally discharged the firearm in commission
of the offense, the enhancement is increased to 20 years. (Id., subd. (c).) Finally,
if the shooting causes great bodily injury to anyone other than an accomplice in
the crime, the statute imposes an extraordinary enhancement of 25 years to life in
prison. (Id., subd. (d).) Under subdivision (f) of the statute, “[o]nly one additional
term of imprisonment under this section shall be imposed per person for each
crime,” and if more than one enhancement is found true under the statute, the court
shall impose the enhancement that provides the longest term of imprisonment. No
other enhancement for firearm use or great bodily injury may also be imposed on
the same count.
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
2
intuitive principle that appropriate punishment is to be measured in part by the
harm the actor causes.2 Our holding today, that the “number of subdivision (d)
enhancements imposed turns on the number of people defendant attempted to
murder” (maj. opn., ante, at p. 13), rather than the number he actually injured, is
not fully consistent with this principle. That defendant shot in the direction of and
thereby endangered several victims certainly makes his offense worse than that of
an assailant who shoots at only a single victim. But that increased culpability
would be fully punished by the additional attempted murder convictions and their
appurtenant 20-year enhancements for defendant having discharged his weapon in
commission of the attempted murders (§ 12022.53, subd. (c)). Under the court’s
statutory reading today, defendant is treated the same as an assailant who shoots in
the direction of, and hits, several victims, a result I do not believe the Legislature,
in enacting section 12022.53’s graduated series of penalties, intended.
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 other than an accomplice.” Moreover,
there may be circumstances—as when a qualifying offense has been committed
against an uninjured victim but not the injured victim—in which imposing a
subdivision (d) enhancement for injury to someone other than the victim of the
underlying crime will best fit the punishment to the crime. The majority is thus
probably correct that subdivision (d)’s specification that the injurious discharge of
2
Though this “harm doctrine” has been called rationally indefensible
(Kadish, Foreword: The Criminal Law and the Luck of the Draw (1994) 84 J.
Crim. 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) 501 U.S. 808, 819-825.)
3
a firearm must have occurred “in the commission of” the underlying qualifying
felony was not intended to limit enhancements to cases where the victim in that
felony sustained great bodily injury. Nor does any other language in the statute
clearly limit the number of subdivision (d) enhancements that may be imposed
based on a single gunfire injury.
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.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.
MORENO, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Oates
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 97 Cal.App.4th 1172
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S106796Date Filed: April 26, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: San Bernardino
Judge: Ingrid Adamson Uhler
__________________________________________________________________________________
Attorneys for Appellant:
Howard C. Cohen, under appointment by the Supreme Court, and John L. Dodd, under appointment by theCourt of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,Assistant Attorney General, Lora Fox Martin, Gil P. Gonzalez, Matthew Mulford, Gary Brozio and Steven
T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Howard C. Cohen555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Steven T. Oetting
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2206
Opinion Information
| Date: | Docket Number: |
| Mon, 04/26/2004 | S106796 |
Parties
| 1 | Oates, Jimmie Lee (Defendant and Appellant) Represented by Howard C. Cohen Appellate Defender's Inc. 555 West Beech Street, Suite 300 San Diego, CA |
| 2 | Oates, Jimmie Lee (Defendant and Appellant) Represented by John L. Dodd Attorney At Law 17621 Irvine Blvd., Suite 200 Tustin, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Steven T. Oetting Office of the Attorney General P.O. Box 85266 San Diego, CA |
| Disposition | |
| Jun 19 2002 | Petition for review denied |
| Dockets | |
| May 17 2002 | Petition for review filed by counsel for appellant Jimmie Lee Oates. Review from order filed 4/10/2002, denying request to file supplemental brief. Note: Opinion filed 4/24/2002; judgment affirmed as modified. |
| May 17 2002 | Record requested |
| May 23 2002 | Received Court of Appeal record two doghouses |
| Jun 3 2002 | 2nd petition for review filed By counsel for respondent {The People}. |
| Jun 19 2002 | Petition for review denied Kennard, J., was absent and did not participate Werdegar, J., and Brown, J., are of the opinion the petition should be granted. |
| Jul 24 2002 | Order vacated (case still open) Due to clerical error, the order denying review, filed June 19, 2002, is hereby vacated. Werdegar, J., and Brown, J., were absent and did not participate. |
| Jul 24 2002 | Petition for Review Granted (criminal case) Respondent's petition. Appellant's petition for review is denied. Werdegar, J., and Brown, J., were absent and did not participate. |
| Aug 19 2002 | Request for extension of time filed respondent asking to Sept. 23, 2002 to file opening brief on the merits. |
| Aug 21 2002 | Counsel appointment order filed Appellate Defenders, Inc. is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before 30 days form the date respondent's opening brief on the merits is filed. |
| Aug 21 2002 | Extension of time granted On application of respondent 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 Sept. 23, 2002. |
| Sep 20 2002 | Opening brief on the merits filed In San Diego by counsel for Respondent {The People}. |
| Oct 18 2002 | Request for extension of time filed Appellant asking to Dec. 9, 2002 to file the answer brief on the merits. |
| Oct 23 2002 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including Dec. 9, 2002. |
| Dec 9 2002 | Answer brief on the merits filed in San Diego by counsel for appellant (Jimmie Lee Oates). |
| Dec 9 2002 | Request for judicial notice filed (in non-AA proceeding) in San Diego by counsel for appellant. 2 sets (original & Supreme Court Copy) of the following documents included: Assembly Committee on Public Safety hearing date 4/8/97, Assembly Republican Caucus Bill Analysis version 4/28/97, Senate Committee on Public Safety hearing date 7/8/97, Concurrence in Senate Amendments as amended 8/4/97, Senate Committee on Public Safety hearing date 7/8/97, Senate Rules Committee third reading amended 9/10/97, Stop Gun Violence 10-20-Life. |
| Dec 18 2002 | Filed: Letter from respondents stating that they do not oppose appellants request for judicial notice filed 12/9/02. |
| Dec 27 2002 | Reply brief filed (case not yet fully briefed) by counsel for respondent People. (recv'd in San Diego) |
| Nov 12 2003 | Supplemental letter briefs requested The court requests that the parties submit supplemental briefs in letter form no later than December 8, 2003, addressing the following question: The effect of Penal Code section 654 aside, as a matter of statutory interpretation, should Penal Code section 12202.53 itself be construed to call for imposition of more than one enhancement under subdivision (d) when a defendant's acts of discharging a firearm produce multiple convictions of attempted murder, but cause great bodily injury or death to only one person. The parties may submit simultaneous reply briefs in letter form no later than December 22, 2003. |
| Nov 12 2003 | Note: copy of order faxed to counsel. |
| Dec 8 2003 | Supplemental brief filed letter brief filed by AG for respondent (People). |
| Dec 8 2003 | Supplemental brief filed in San Diego by counsel for appellant (Jimmy Lee Oates). |
| Dec 9 2003 | Received document entitled: certificate of word count compliance - for supplemental brief filed by AG. |
| Dec 22 2003 | Reply brief filed (case not yet fully briefed) by AG for respondent (People). (letter form) |
| Dec 22 2003 | Reply brief filed (case fully briefed) by counsel for appellant (Jimmy Lee Oates). (letter form) (recv'd in San Diego) |
| Jan 8 2004 | Request for judicial notice granted Defendant's request of judicial notice filed on December 18, 2003 is hereby granted. |
| Jan 14 2004 | Case ordered on calendar Tuesday, February 10, 2004 @ 2pm (Sacramento) |
| Jan 30 2004 | Supplemental brief filed by appellant providing new authorities. |
| Feb 10 2004 | Cause argued and submitted |
| Apr 26 2004 | Opinion filed: Judgment reversed and remanded. Opinion by Chin, J. -----joined by George, C.J., Baxter & Brown, JJ. Concurring opinion by Werdegar, J. -----joined by Kennard, & Moreno, JJ. |
| May 7 2004 | Rehearing petition filed In San Diego by counsel for appellant {Jimmie Lee Oates} |
| May 12 2004 | Time extended to consider modification or rehearing to July 23, 2004. |
| May 13 2004 | Order filed Pursuant to rule 25b (2) California Rules of Court, the Court hereby requests that Respondent herein file an answer to the petition for rehearing filed in this Court. The answer is due on or before May 21, 2004. |
| May 21 2004 | Answer to rehearing petition filed In San Diego by Respondent {The People}. |
| Jul 14 2004 | Rehearing denied |
| Jul 14 2004 | Remittitur issued (criminal case) |
| Jul 26 2004 | Received: Receipt for remittitur - from CA4/2 |
| Oct 19 2005 | Compensation awarded counsel Atty Cohen - Appellate Defenders, Inc |
| Sep 21 2006 | Note: Record returned to CA. (2 doghouses) |
| Briefs | |
| Sep 20 2002 | Opening brief on the merits filed |
| Dec 9 2002 | Answer brief on the merits filed |
| Dec 27 2002 | Reply brief filed (case not yet fully briefed) |
| Dec 22 2003 | Reply brief filed (case not yet fully briefed) |
| Dec 22 2003 | Reply brief filed (case fully briefed) |
