Stanford Law School - Robert Crown Law Library

Filed 3/27/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S131048
v.
Ct.App. 2/8 B160417
SAMUEL SHARAD SHABAZZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA203410

We granted review in this case to address the following two questions: (1) Does
the special circumstance set forth in Penal Code section 190.2, subdivision (a)(22)
(hereafter section 190.2(a)(22)),1 which authorizes imposition of a punishment of death
or life imprisonment without the possibility of parole upon an active participant of a
criminal street gang who “intentionally killed the victim” to further the activities of the
gang, apply to a defendant who discharged a firearm with the intent to kill one person but
missed the intended victim and killed another individual? (2) Is a defendant who is
sentenced to life imprisonment without the possibility of parole for first degree murder
also subject to a sentence enhancement of 25 years to life under section 12022.53,
subdivision (d) (hereafter section 12022.53(d)), for personally discharging a firearm and
causing death in the commission of the murder, or does section 12022.53, subdivision (j)
(hereafter section 12022.53(j)), preclude imposition of that enhancement in view of the

1
All further statutory references are to the Penal Code unless otherwise indicated.
1

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lengthier term of incarceration―that is, life imprisonment without the possibility of
parole―imposed upon the defendant for the underlying felony?
As we shall explain, we conclude that a finding of the special circumstance set
forth in section 190.2(a)(22) may be upheld when a defendant, while an active participant
in a criminal street gang and in furtherance of that gang’s activities, has performed an act
with an intent to kill that resulted in the killing of any individual. We therefore affirm the
part of the Court of Appeal’s judgment that so held.
With regard to the sentence enhancement of 25 years to life embodied in section
12022.53(d), we are of the view that the enhancement may be imposed notwithstanding
the circumstance that defendant’s sentence for the underlying felony is life imprisonment
without the possibility of parole. To hold otherwise would contravene both the plain
language and the legislative intent underlying section 12022.53 as a whole, and would
exempt more serious offenders from a punishment imposed upon less serious offenders.
We therefore reverse the part of the Court of Appeal’s judgment that held to the contrary,
and remand the matter to that court for proceedings consistent with the views expressed
in our opinion.
I.
The relevant facts are as follows.
On May 28, 2000, in the early evening, victim Lori Gonzalez, 20 years of age, sat
in the driver’s seat of a blue Chevrolet Caprice that was stopped in the drive-through lane
at a Popeye’s Chicken and Biscuits restaurant, located at La Brea Avenue and Jefferson
Street in Los Angeles.
Darrell Miller, who testified under a grant of immunity and in exchange for a
reduction of his prison sentence in connection with several other unrelated felonies, was a
member of the Geer Street Crips gang. He observed the blue Caprice at the restaurant.
He thereafter drove to West Boulevard and Adams Street to sell drugs. Having received
a cellular telephone call from an acquaintance indicating that members of the rival
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Bloods gang had used the blue Caprice in a recent drive-by shooting, Miller passed this
information on to several other members of the Crips, including defendant, a member of
the West Boulevard Crips. These individuals then drove to the restaurant.
Defendant donned gloves and a beanie, exited from Miller’s vehicle, walked up to
the passenger side of the blue Caprice, and fired repeatedly at Gonzalez’s passenger,
Ernest Gray, a member of the rival Black P-Stone Bloods gang. Gray ducked when he
saw the firearm, and the shots hit and killed Gonzalez.2
A jury convicted defendant of first degree murder and found true the special
circumstance that defendant intentionally killed Gonzalez while he was an active
participant in a criminal street gang and that the murder was carried out to further the
activities of the gang. (§ 190.2(a)(22).) The jury further found that, in committing the
murder, defendant personally and intentionally discharged a firearm, thereby causing
Gonzalez’s death within the meaning of section 12022.53(d). The trial court thereafter
sentenced defendant to life in prison without the possibility of parole for the murder of
Gonzalez, plus 25 years to life in prison for the enhancement based on defendant’s use of
a firearm in the commission of the murder.3

2
A student at Saddleback College, Gonzalez was the granddaughter of Bernard
Parks, then Chief of the Los Angeles Police Department. Unaffiliated with any gang,
Gonzalez was killed one week shy of her 21st birthday. Apparently her death was
attributable simply to being in the wrong place at the wrong time.
3
In addition to sentencing defendant for the first degree murder of Lori Gonzalez,
the trial court sentenced defendant to life in prison with the possibility of parole, plus a
20-year enhancement for discharging a firearm (§ 12022.53(d)), based upon defendant’s
conviction of the attempted murder of Ernest Gray. The trial court imposed seven
additional consecutive life sentences (and, in certain cases, firearm-use enhancements)
based upon defendant’s convictions of the attempted murders of Randy Robinson, Shawn
Smith, Thomas Jones, Calvin Shaw, Ladroe Watson, Lamont Sims, and Mark Robinson
in other drive-by shootings that are unrelated to the legal issues before us. The court also
imposed a restitution fine in the amount of $10,000. (§ 1202.4, subd. (b).)
3

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On appeal, defendant contended that the criminal-street-gang special circumstance
set forth in section 190.2(a)(22) does not apply to him, because that provision requires
that defendant “intentionally killed the victim” and defendant intended to kill Ernest
Gray, not the actual victim, Lori Gonzalez. In rejecting defendant’s position, the Court of
Appeal held: “[T]he section 190.2(a)(22) special circumstance requires that the
defendant (1) possessed the intent to kill, (2) was an active participant in a criminal street
gang, and (3) carried out the murder in furtherance of the gang’s activities. There is no
requirement that the person who was murdered be the person whom the defendant
intended to kill.” The Court of Appeal therefore concluded that the jury’s true finding as
to the special circumstance was appropriate as to the murder of Gonzalez.
With regard to the firearm-use enhancement set forth in section 12022.53(d),
defendant contended that imposition of the 25-year-to-life enhancement was not authorized
by the language of section 12022.53(j). Specifically, defendant asserted that because the
sentence ― life imprisonment without the possibility of parole ― imposed upon him for
the underlying felony, was a “longer term of imprisonment” than the prescribed 25-year-to-
life enhancement, section 12022.53(j) precluded imposition of the enhancement. The
Court of Appeal agreed and ordered the enhancement stricken, expressly disagreeing with
the decision rendered by the Court of Appeal in People v. Chiu (2003) 113 Cal.App.4th
1260 (Chiu), which held that a section 12022.53 enhancement properly may be imposed
under such circumstances. (See also People v. Coker (2004) 120 Cal.App.4th 581, 589-
590 (Coker) [reaching a conclusion consistent with Chiu]; People v. Bracamonte (2003)
106 Cal.App.4th 704 [although the Court of Appeal did not discuss section 12022.53(j), it
upheld a 25-year-to-life enhancement under section 12022.53(d) in addition to a sentence
of life imprisonment without the possibility of parole].)
Defendant and the People each sought review. We granted both petitions and
limited the issues to be briefed and argued to the two issues set forth above. We turn first
to the proper interpretation of the special circumstance set forth in section 190.2(a)(22).
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II.
As noted, defendant was charged with and convicted of the first degree murder of
Lori Gonzalez, and the jury found true the allegation that the offense met the
requirements of the gang-murder special circumstance. (§ 190.2(a)(22).) Section
190.2(a)(22) provides: “The penalty for a defendant who is found guilty of murder in the
first degree is death or imprisonment in the state prison for life without the possibility of
parole if one or more of the following special circumstances has been found under section
190.4 to be true: [¶] . . . [¶] (22) The defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in subdivision (f)
of section 186.22, and the murder was carried out to further the activities of the criminal
street gang.”4
Defendant contends the gang-murder special circumstance set forth in section
190.2(a)(22) is inapplicable to him because that provision requires that he “intentionally
killed the victim,” and defendant intended to kill Ernest Gray, not the actual victim,
Gonzalez. As we shall explain, we reject defendant’s argument because it improperly
minimizes the significance of the circumstance that the provisions of section 190.2(a)(22)
were drafted, adopted, and reasonably must be interpreted against the background of the
transferred intent doctrine, a theory of liability that long has been part of California law
and one that “connotes a policy ― that a defendant who shoots at an intended victim with
intent to kill but misses and hits a bystander instead should be subject to the same
criminal liability that would have been imposed had he hit his intended mark.” (People v.

4
Section 186.22, subdivision (f), defines a “criminal street gang” as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more . . . criminal acts
[enumerated in section 186.22, subdivision (e), paragraphs (1) to (25)], having a common
name or common identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal gang activity.”
5

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Scott (1996) 14 Cal.4th 544, 551 (Scott)]; see also People v. Suesser (1904) 142 Cal. 354,
365-367 [interpreting California’s murder statute as embodying the transferred intent
doctrine].)
“Under the classic formulation of California’s common law doctrine of transferred
intent, a defendant who shoots with the intent to kill a certain person and hits a bystander
instead is subject to the same criminal liability that would have been imposed had ‘ “the
fatal blow reached the person for whom intended.” ’ [Citation.] In such a factual setting,
the defendant is deemed as culpable as if he had accomplished what he set out to do.”
(Scott, supra, 14 Cal.4th at p. 546 [where defendants fired an automatic weapon into a
public park in an attempt to kill a certain individual, instead killing a bystander, the jury
properly was instructed on the transferred intent theory of liability for first degree
murder]; see also People v. Sears (1970) 2 Cal.3d 180, 189 [“if a person purposely and of
his deliberate and premeditated malice attempts to kill one person but by mistake and
inadvertence kills another instead, the law transfers the intent and the homicide so
committed is murder of the first degree”]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000 & 2005 supp.) Elements, §§ 13-15, pp. 215-219; id. (2005 supp.) § 15A, pp. 47-48
(Witkin & Epstein).)5

5
In considering the applicability of the doctrine of transferred intent, the
circumstance that defendant also was charged with, and convicted of, the attempted
murder of Ernest Gray, does not aid defendant’s position. (See Scott, supra, 14 Cal.4th at
p. 546 [“Contrary to what its name implies, the transferred intent doctrine does not refer
to any actual intent that is ‘used up’ once it has been employed to convict a defendant of
a specific intent crime against an intended victim. Rather, the doctrine of transferred
intent connotes a policy. As applied here, the transferred intent doctrine is but another
way of saying that a defendant who shoots with an intent to kill but misses and hits a
bystander instead should be punished for a crime of the same seriousness as the one he
tried to commit against his intended victim”].) A person who shoots at one person,
missing the target and killing another, instead, has committed crimes against two persons.
(Ibid.; see also People v. Bland (2002) 28 Cal.4th 313, 331 [“When one attempts to kill
(footnote continued on next page)
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In the present case, the trial court instructed the jury pursuant to CALJIC No. 8.65,
which accurately distilled the foregoing principles,6 as well as under CALJIC No.
8.81.22, pertaining to the gang-murder special circumstance.7
As noted above, defendant contends the gang-murder special circumstance applies
only to those murders where the intended victim was killed, and that the doctrine of
transferred intent is inapplicable to the gang-murder special circumstance. Although
defendant acknowledges the lengthy history of the transferred intent doctrine (extending
back to 16th century England (see Scott, supra, 14 Cal.4th at pp. 548-549)), he notes the
dearth of California case law specifically addressing the applicability of the doctrine in
the special circumstance setting. Defendant relies upon our decision in People v. Bland,
supra, 28 Cal.4th 313, wherein we declined to extend the doctrine of transferred intent to
the inchoate crime of attempted murder. Bland is clearly distinguishable from the present
case, however, because in Bland the unintended victim did not die and thus we were not
confronted with the issue to which the transferred intent doctrine classically was
addressed, namely, the appropriate level of criminal liability for a person who has acted

(footnote continued from previous page)
one person but instead kills another, there are always two victims: the intended target
and the one actually killed”]; 1 Witkin & Epstein, supra, Elements, § 15, p. 218.)
6
CALJIC No. 8.65, as read to the jury, instructed: “When one attempts to kill a
certain person but by mistake or inadvertence kills a different person, the crime, if any, so
committed is the same as though the person originally intended to be killed had been
killed.”
7
CALJIC No. 8.81.22, as read to the jury, instructed: “To find that the special
circumstance, intentional killing by an active street gang member in furtherance of gang
activity, is true, it must be proved: (1) That the defendant intentionally killed the victim;
(2) At the time of the killing, the defendant was an active participant in a criminal street
gang; (3) The members of that gang engaged in or have engaged in a pattern of criminal
gang activity; (4) The defendant knew that the gang members engaged in or have
engaged in a pattern of criminal activity, and (5) The murder was carried out to further
the activities of the criminal street gang.”
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with the intent to kill one or more persons but who instead has directly caused the death
of another individual. Unlike Bland, the present case requires us to consider the
blameworthiness of someone who, acting with the intent to kill, and for the purpose
specified by the statute in question, actually has killed another individual. As we made
clear in Bland, “The mental state required for attempted murder has long differed from
that required for murder itself.” (Id., at p. 327.)
Although there is scant California case law examining the doctrine of transferred
intent in the special circumstance context (cf. People v. Arreola (1986) 186 Cal.App.3d
1570, 1576 [“it appears that the intent to kill required for a . . . special circumstance need
not be the intent to kill the ultimate victim”]), we perceive no sound reason why the
doctrine does not apply to the gang-murder special circumstance set forth in section
190.2(a)(22). Nothing in the language of this statute indicates an intent to exempt its
provisions from the well-established transferred intent doctrine, and unlike some other
special-circumstance provisions that identify a particular class of victims (see, e.g.,
§§ 190.2, subd. (a)(7) [“victim was a peace officer”], 190.2, subd. (a)(8) [“victim was a
federal law enforcement officer or agent”], 190.2, subd. (a)(9) [“victim was a
firefighter”]), the language of section 190.2(a)(22) does not suggest that the applicability
of this special circumstance depends upon the identity or occupation of the victim.
Furthermore, defendant fails to provide any persuasive basis for us to conclude, as
a general matter, that the rationale underlying the transferred intent doctrine may not or
should not be applied to the interpretation and application of a statutory provision
specifying the circumstances that render a defendant eligible for a sentence of life
imprisonment without the possibility of parole, or death. (See, e.g., Bradshaw v. Richey
(2005) ___ U.S. ___ [126 S.Ct. 602] [where the defendant set fire to a neighbor’s
apartment in an attempt to kill his ex-girlfriend and her new boyfriend, but instead killed
the neighbor’s two-year-old daughter and was convicted of aggravated felony murder and
sentenced to death, the United States Supreme Court held that the State of Ohio properly
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had invoked the doctrine of transferred intent in applying its aggravated felony-murder
statute, thereby rendering the defendant eligible for the death penalty].)
Moreover, application of the transferred intent doctrine to the special circumstance
provision set forth in section 190.2(a)(22) is strongly supported by the purpose
underlying this special circumstance provision. Section 190.2(a)(22) was enacted as part
of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, an
initiative measure adopted by the electorate at the March 2000 primary election. We
have had occasion in past decisions to review at length the findings and declarations that
were set forth as part of that ballot proposition (see Robert L. v. Superior Court (2003) 30
Cal.4th 894, 905-908 (Robert L.); Manduley v. Superior Court (2002) 27 Cal.4th 537,
574), and a similarly extensive recitation is unnecessary here. Suffice it to say that the
findings and declarations included in Proposition 21 announced: “Gang-related crimes
pose a unique threat to the public because of gang members’ organization and solidarity.
Gang-related felonies should result in severe penalties. Life without the possibility of
parole or death should be available to murderers who kill as part of any gang-related
activity.” (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (h),
p. 119, italics added (Ballot Pamphlet).) The italicized portion of the proposition,
addressing in generic terms “murderers who kill as part of any gang-related activity,”
without any restriction as to the identity of the person actually killed, makes clear that
neither the focus of the proposition nor the intent of the electorate was directed to a
particular class of victim (unlike what we have seen in certain other special-circumstance
provisions, noted above), but rather to the specific act of gang-related killing.
The voters intended to address gang-related crime generally. (See Robert L.,
supra, 30 Cal.4th at p. 907 [noting the electorate’s intent “to punish all gang crime more
severely”].) An interpretation of section 190.2 encompassing all victims of gang-related
killings is consistent with that intent. One that encompasses only those gang-related
killings in which the assailant correctly identifies and kills the targeted individual (instead
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of, say, a bystander), as defendant urges here, is not. (See also People v. Arreola, supra,
186 Cal.App.3d 1570, 1576 [“Any deterrent effect capital punishment may have on a
prospective killer will not be lost on one who . . . intends to kill, attempts to kill, and in
the attempt inadvertently takes the life of one whom he did not intend to kill”].) Gang-
related violence poses a threat to gang members and nonmembers, alike; nothing
contained in the history of the statute in question suggests that in enacting Proposition 21,
the electorate determined that a gang member who acts with the intent to kill should be
deemed less blameworthy simply because his or her ultimate victim was a bystander or
other nonmember rather than the perpetrator’s actual, intended victim selected from an
opposing gang. 8
We also are unpersuaded by defendant’s contention that restricting the
applicability of the gang-murder special circumstance to situations where the gang
member kills his or her intended target, rather than an unintended victim, “serves the
statute’s purpose by discouraging the endless cycle of retaliatory gang killings.” As we
have seen, the general purpose of the statute is to curtail gang-related activity, and the
gang-murder special circumstance in particular is directed against “murderers who kill as
part of any gang-related activity,” not simply against those murderers who kill their
intended targets. (Ballot Pamp., supra, p. 119.)
Because we conclude, in light of the well-established nature of the transferred
intent doctrine and the clear purpose underlying this statutory provision, that the gang-
murder special circumstance set forth in section 190.2(a)(22) reasonably must be
interpreted to incorporate the doctrine, defendant’s reliance upon the so-called rule of

8
At oral argument, defendant’s counsel argued that in enacting Proposition 21, the
voters were unlikely to have considered the doctrine of transferred intent. We are
unpersuaded; it is well-settled that voters “ ‘ are presumed to know the law.’ ” (Anderson
v. Superior Court (1995) 11 Cal.4th 1152, 1161.)
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lenity lacks merit. That rule clearly is inapplicable in the present circumstances. (See,
e.g., People v. Avery (2002) 27 Cal.4th 49, 57-58.)
Accordingly, the trial court properly instructed the jury on the transferred intent
doctrine in relation to the gang-murder special-circumstance allegation, and the Court of
Appeal properly upheld the jury’s special circumstance finding under section
190.2(a)(22).
III.
We next turn to the statutory interpretation issue related to the enhancement
provisions of section 12022.53. As noted above, in addition to convicting defendant of
the first degree murder of Lori Gonzalez and finding true the special circumstance that
defendant intentionally killed Gonzalez while he was an active participant in a criminal
street gang and that the murder was carried out to further the activities of the gang
(§ 190.2(a)(22)), the jury found that, in committing the murder, defendant personally and
intentionally discharged a firearm causing Gonzalez’s death within the meaning of
section 12022.53(d). The trial court thereafter sentenced defendant to life in prison
without the possibility of parole (for the murder of Gonzalez, with the special
circumstance finding), and additionally imposed a consecutive sentence of 25 years to
life in prison for the enhancement (based upon defendant’s use of a firearm in the
commission of the murder).
On appeal, defendant contended that the 25-year-to-life enhancement for
discharging a firearm must be stricken pursuant to section 12022.53(j), “because another
provision of law[,] section 190.2(a)(22)[,] provides for a longer term of imprisonment,
namely [life in prison without the possibility of parole], than the 25-year-to-life sentence
imposed for this enhancement.”
The Court of Appeal found persuasive defendant’s position and ordered the
enhancement stricken. In reaching its conclusion, the court determined that there was no
ambiguity in section 12022.53(j), and that the trial court had erred in imposing the 25-
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year-to-life enhancement, because the trial court imposed as the base term a “longer term
of imprisonment, life without the possibility of parole, pursuant to section 190.2(a)(22).”
For the reasons that follow, we conclude that the Court of Appeal erred in this respect.
Section
12022.53(j)
provides in relevant part: “For the penalties in this section to
apply [that is, the 10-year, 20-year, or 25-year-to-life enhancements set forth in section
12022.53, subdivisions (b), (c), (d), respectively], the existence of any fact required under
subdivisions (b), (c), or (d) shall be alleged in the information or indictment and either
admitted by the defendant in open court or found to be true by the trier of fact. When an
enhancement specified in this section has been admitted or found to be true, the court
shall impose punishment pursuant to this section rather than imposing punishment
authorized under any other provision of law, unless another provision of law provides for
a greater penalty or a longer term of imprisonment.” (Italics added.)
When the concluding sentence of section 12022.53(j) is read in isolation, its
meaning reasonably is susceptible to alternative interpretations: (1) the phrase “unless
another provision of law provides for a greater penalty or a longer term of punishment”
might refer to another enhancement provision that requires an additional punishment
greater than the punishment specified by the enhancement provisions contained within
section 12022.53 (the People’s position, echoing the conclusion reached in Coker, supra,
120 Cal.App.4th 581, 588), or, alternatively, (2) the phrase might refer to any sentencing
provision that provides for a sentence greater than that specified by the applicable
12022.53 enhancement, including a provision that prescribes the sentence for the
underlying offense committed by the defendant (defendant’s position, echoing the
conclusion reached by the Court of Appeal below).
To resolve this ambiguity, we rely upon well-settled rules. “The meaning of a
statute may not be determined from a single word or sentence; the words must be
construed in context, and provisions relating to the same subject matter must be
harmonized to the extent possible. (Dyna-Med, Inc. v. Fair Employment & Housing
12

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Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) Literal
construction should not prevail if it is contrary to the legislative intent apparent in the
statute. . . . An interpretation that renders related provisions nugatory must be avoided
(People v. Craft (1986) 41 Cal.3d 554, 561 [224 Cal.Rptr. 626, 715 P.2d 585]); each
sentence must be read not in isolation but in light of the statutory scheme (In re Catalano
(1981) 29 Cal.3d 1, 10-11 [171 Cal.Rptr 667, 623 P.2d 228]); and if a statute is amenable
to two alternative interpretations, the one that leads to the more reasonable result will be
followed (Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630-631 [197 P.2d
543]).” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; see also Robert L., supra, 30
Cal.4th 894, 903 [“ ‘Statutory language should not be interpreted in isolation, but must be
construed in the context of the entire statute of which it is a part, in order to achieve
harmony among the parts’ ”].)
Defendant’s contention that section 12022.53 properly should be interpreted to
refer to any provision that provides for a greater punishment fails to comport with the
foregoing rules of statutory construction. As we explained in People v. Garcia (2002) 28
Cal.4th 1166, 1166 (Garcia): “The legislative intent behind section 12022.53 is clear:
‘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.’ ” (Id., at p. 1172, quoting Stats. 1997, ch. 503,
§ 1.) To effectuate this intent, section 12022.53 first sets out, in subdivision (a), a list of
felonies to which the statute applies, and then provides three potential sentence
enhancements that apply to a defendant who uses a firearm in the commission of one of
the enumerated felonies, as follows: subdivision (b) provides a 10-year enhancement for
any person who “personally uses a firearm” in the commission of such a felony;
subdivision (c) provides a 20-year enhancement for any person who “personally and
intentionally discharges a firearm” in the commission of such a felony; and subdivision
(d) provides a 25-year-to-life enhancement for any person who “personally and
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intentionally discharges a firearm and proximately causes great bodily injury . . . or death,
to any person other than an accomplice” in the commission of such a felony.
Subdivisions (b), (c), and (d) provide that the enhancement prescribed in each subdivision
shall be applied “[n]otwithstanding any other provision of law” and as “an additional and
consecutive term of imprisonment.” (§ 12022.53, subds. (b), (c), (d) respectively; see
also Chiu, supra, 113 Cal.App.4th at p. 1263 [“The statute makes clear that these
enhancements are to be added to the base term for the crime”].)
Defendant’s
proposed
interpretation of section 12022.53(j) is incompatible with
the provisions of section 12022.53 as a whole. Under defendant’s proposed
interpretation, subdivision (j) would preclude the imposition of the mandatory
consecutive sentence enhancements prescribed by subdivisions (b), (c), and (d) whenever
the sentence for the underlying felony committed by the defendant is greater than the
otherwise applicable section 12022.53 enhancement. As we shall explain, that
interpretation would preclude application of the enhancements set forth in section
12022.53 to many of the felonies to which the statute explicitly is intended to apply, and
also would lead to anomalous results in other circumstances.
The list of designated felonies set forth in section 12022.53, subdivision (a),
includes two felonies that are punishable only by a term of life in prison without the
possibility of parole: (1) aggravated mayhem (§ 205), and (2) kidnapping for ransom in
which the victim “suffers death or bodily harm, or is intentionally confined in a manner
which exposes [the victim] to a substantial likelihood of death” (§ 209, subd. (a)).
(§ 12022.53, subd. (a)(2), (3).) Section 12022.53 also specifically applies to the crime of
assault with a deadly weapon by a prisoner serving a life sentence (§ 12022.53, subd.
(a)(14)), a crime that is punishable by death or life in prison without possibility of parole
if the victim dies within one year and one day after the assault. (§ 4500.) Additionally,
section 12022.53, subdivision (a), includes a “catch-all” provision specifying that the
statute is applicable to “[a]ny felony punishable by death or imprisonment in the state
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prison for life.” (§ 12022.53, subd. (a)(17), italics added.) These statutory provisions
make clear that the Legislature intended that the enhancements set forth in section
12022.53 be added to a defendant’s sentence when the underlying offense is punishable
by death or by life imprisonment without the possibility of parole. Thus, the
interpretation advanced by defendant would render the statute inapplicable to certain
offenses to which the statute definitely was intended to apply.
Furthermore, even with regard to those felonies listed in section 12022.53,
subdivision (a), whose base terms are not longer than all of the enhancements embodied
in that provision, the adoption of defendant’s proposed interpretation of section
12022.53(j) would lead to anomalous results. For example, one of the felonies to which
the section 12022.53 enhancements apply is the offense of assault with a firearm on a
peace officer or firefighter in violation of section 245, subdivision (d). Under section
245, subdivision (d)(3), the sentence to be imposed upon a person who commits an
assault on a peace officer with a machinegun is a prison term of six, nine, or 12 years.
Under defendant’s interpretation of section 12022.53(j), a person who personally used the
firearm in the course of the felony and who would be subject to a 10-year enhancement
under section 12022.53, subdivision (b), could have his sentence increased by that
enhancement if he or she were sentenced to the lower (six-year) or middle (nine-year)
term for the underlying offense, but the convicted felon would escape the enhancement,
and receive a shorter total sentence, if the felon’s conduct and the accompanying
circumstances demonstrated culpability sufficient to justify an upper (12-year) term on
the underlying felony. Such an anomalous consequence resulting from defendant’s
proposed interpretation of section 12022.53(j) is illogical and contrary to the purpose of
the statute (see Garcia, supra, 28 Cal.4th at p. 1172); that provision instead must be
interpreted to require that a section 122022.53 enhancement be imposed unless the
defendant is subject to a different enhancement provision that specifies a longer term.
(See, e.g., People v. Pieters (1991) 52 Cal.3d 894, 898 [“ ‘It is a settled principle of
15

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statutory interpretation that language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the Legislature did not intend’ ”];
People v. Loeun (1997) 17 Cal.4th 1, 9 [“ ‘Interpretations that lead to absurd results . . .
are to be avoided’ ”].)
Although defendant contends it would be unreasonable to assume that the
Legislature intended that the section 12022.53 enhancements would be imposed on a
defendant who is sentenced to life imprisonment without the possibility of parole,
because the enhancement would have no practical effect, the words employed in section
12022.53 defeat defendant’s argument: the statute states specifically that it is intended to
apply to “any felony punishable by death or imprisonment for life.” (§ 12022.53, subd.
(a)(17); Chiu, supra, 113 Cal.App.4th at p. 1264.) Moreover, section 669 makes it clear
that the Legislature has determined that, as a general matter, enhancements properly may
be imposed to run consecutively to a life sentence. (§ 669 [“Life sentences, whether with
or without the possibility of parole, may be imposed to run consecutively with one
another, with any term imposed for applicable enhancements, or with any other term of
imprisonment for a felony conviction”]; see also People v. Felix (2000) 22 Cal.4th 651,
655-656 [upholding imposition of the full term provided for enhancements that are added
to indeterminate terms].)9

9
We also observe that an individual who is sentenced to life imprisonment without
the possibility of parole conceivably could have his or her sentence commuted to life
imprisonment with the possibility of parole or an even lesser sentence. (Cal. Const.,
art. V, § 8; see also People v. Ward (2005) 36 Cal.4th 186, 200 [“The Governor may
ameliorate any sentence by use of the commutation . . . power . . .”]; People v.
Zimmerman (1984) 36 Cal.3d 154, 160 [“[I]n the decade from 1969 to 1979 the Governor
commuted the sentences of . . . four persons from terms of life without parole to terms of
life with parole.”].) Under such circumstances, imposition of a sentence enhancement of
25 years to life in prison could have a practical effect on the length of the sentence served
by the individual.
16

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In light of the foregoing, we conclude that the trial court properly imposed a
sentence enhancement of 25 years to life in prison under section 12022.53(d), in addition
to defendant’s sentence of life in prison without the possibility of parole, for the murder
of Lori Gonzalez.
IV

The judgment rendered by the Court of Appeal is reversed insofar as it set aside
the 25-year-to-life enhancement imposed by the trial court pursuant to section
12022.53(d), and is affirmed in all other respects.
GEORGE,
C.
J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

17

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Shabazz
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 125 Cal.App.4th 130
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S131048
Date Filed: March 27, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Robert J. Perry

__________________________________________________________________________________

Attorneys for Appellant:

Christine Vento, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka,
Assistant Attorney General, William T. Harter, Donald E. De Nicola, Jaime L. Fuster, Kristofer Jorsad and Linda C.
Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

David R. LaBahn; Bonnie M. Dumanis, District Attorney (San Diego), Charles E. Nickel and James E. Atkins,
Deputy District Attorneys, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and
Respondent.

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

Christine Vento
P.O. Box 691071
Los Angeles, CA 90069-9071
(323) 936-5113

Linda C. Johnson
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2254

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Opinion Information

Date:	Docket Number:
Mon, 03/27/2006	S131048

Disposition
Mar 27 2006	Opinion: Affirmed in part/reversed in part

Dockets
Jan 25 2005	Petition for review filed   counsel for appellant Samuel Sharad Shabazz
Jan 28 2005	2nd petition for review filed   respondent...THE PEOPLE
Jan 28 2005	Record requested
Jan 31 2005	Received Court of Appeal record   one doghouse
Feb 3 2005	Request for depublication (petition for review pending)   respondent /for secton four of CA/2-8
Mar 16 2005	Petition for review granted (criminal case)   Respondent's petition for review GRANTED. Appellant's petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) Does the special circumstance in Penal Code section 190.2(a)(22), which authorizes a punishment of death or life imprisonment without the possibility of parole for a gang member who "intentionally killed the victim" to further the activities of the gang, apply to a defendant who fired a gun with the intent to kill one person but missed and killed another? (2) When a defendant is convicted of an offense that is punishable by a sentence of life imprisonment without the possibility of parole, is the defendant also subject to a 25-years-to life sentence enhancement under Penal Code section 12022.53, subdivision (d), for personally discharging a firearm and causing death, or does Penal Code section 12022.53, subdivision (j), preclude the imposition of that sentence enhancement when the punishment for the defendant's underlying felony is life imprisonment without the possibility of parole? Brown, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Apr 8 2005	Counsel appointment order filed   Christine Vento is appointed to represent apellant. Aplt's brief on the merits is due on or before 30 days (5-9-05)
Apr 12 2005	Request for extension of time filed   and reqt for clarification>>respondent People
Apr 18 2005	Order filed   The court granted review in this matter on 3-16-05. Respondent (the People) shall be deemed petitioner in this court for purposes of briefing and oral argument. The briefing schedule shall be governed by California Rules of Court, rule 29.1.
Apr 18 2005	Extension of time granted   to 5-15-05 for respondent to file the opening brief on the merits.
May 12 2005	Request for extension of time filed   opening brief/merits to 5-23-05>>respondent People
May 16 2005	Extension of time granted   To May 23, 2005 for respondent to file the Opening Brief on the Merits.
May 23 2005	Opening brief on the merits filed   respondent THE PEOPLE
Jun 22 2005	Request for extension of time filed   counsel for applnt SAMUEL SHARAD SHABAZZ request to July 22. 2005 to file answer brief on the merits
Jun 29 2005	Extension of time granted   to 7-22-05 for aplt. to file the answer brief on the merits.
Jul 21 2005	Request for extension of time filed   to file answer brief on the merits by counsel for appellant SAMUEL SHARAD SHABAZZ
Jul 22 2005	Note:   extension of time requested to 8-22.
Jul 27 2005	Extension of time granted   to 8-22-05 for aplt to file the answer brief on the merits. No further extensions of time are contemplated.
Aug 24 2005	Answer brief on the merits filed   appellant Samuel Sharad Shabazz [rule 40.1]
Sep 6 2005	Received application to file Amicus Curiae Brief   California District Attorneys Association in support of the People of the State of California.
Sep 8 2005	Request for extension of time filed   respondent (The People) request to Oct. 11, 2005 to file the reply brief on the merits
Sep 9 2005	Permission to file amicus curiae brief granted   by the Calif. District Attorneys Associationin support of resp. People. Answers may be filed w/in 20 days.
Sep 9 2005	Amicus curiae brief filed   by the Calif. Dist. Attys. Assn. in support of resp.
Sep 13 2005	Extension of time granted   to 10-11-05 for resp to file the reply brief on the merits. No further extensions of time will be granted.
Oct 7 2005	Reply brief filed (case fully briefed)   respondent [people]
Jan 19 2006	Case ordered on calendar   February 14, 2006, 1:00 p.m., in Sacramento
Jan 23 2006	Letter sent to:   lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006.
Jan 30 2006	Request for Extended Media coverage Filed   By John Hancock of The California Channel.
Feb 1 2006	Filed letter from:   Christine Vento, counsel for appellant Shabazz "... Appellant, through his counsel, stipulates that it is acceptable for Justice Chin to participate in this matter even though Justice Chin will be absent from the February oral argument."
Feb 1 2006	Filed letter from:   Respondent People re: stipulation to allow Justice Chin to participate Deputy Attorney General Linda C. Johnson
Feb 3 2006	Request for Extended Media coverage Granted   Subject to the conditions set forth in rule 980, California Rules of Court.
Feb 14 2006	Cause argued and submitted
Mar 27 2006	Opinion filed: Affirmed in part, reversed in part   reversed insofar as it set aside the 25-year-to life ehancement imposed by the trial court pursuant to section 12022.53(d), and is affirmed in all other respects. Opinion by George,C.J. -----joined by Kennard,Baxter,Werdegar,Chin,Moreno & Corrigan,JJ.
Mar 29 2006	Request for modification of opinion filed   Office of The District Attorney by James E. Atkins
Mar 29 2006	Filed letter from:   Respondent People
Apr 3 2006	Received:   amended proof of service
Apr 12 2006	Opinion modified - no change in judgment   Werdegar, J., was absent and did not participate.
Apr 27 2006	Remittitur issued (criminal case)
May 5 2006	Received:   receipt for remittitur

Briefs
May 23 2005	Opening brief on the merits filed
Aug 24 2005	Answer brief on the merits filed
Sep 9 2005	Amicus curiae brief filed
Oct 7 2005	Reply 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