Filed 8/31/09 (this opn. follows companion case, S148643, also filed 8/31/09)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S147980
v.
Ct.App. 5 F048767
BYRON JEROME BROOKFIELD,
Kern County
Defendant and Appellant.
Super. Ct. No. BF107031B
____________________________________)
In this case, a companion to People v. Jones (Aug. 31, 2009, S148643) ___
Cal.4th ___, we must interpret subdivision (e)(2) of Penal Code section 12022.53
(section 12022.53(e)(2)). That provision states: ―An enhancement for
participation in a criminal street gang . . . shall not be imposed . . . in addition to‖
an enhancement under Penal Code section 12022.53 for firearm use unless the
defendant ―personally used or personally discharged a firearm in the commission
of the offense.‖ (Italics added.)
Here, defendant was convicted of a gang-related crime in the commission of
which he did not personally discharge a firearm, but a companion did. The trial
court sentenced defendant to life imprisonment because of his participation in a
criminal street gang; the court also imposed additional punishment because of the
companion‘s firearm use. We conclude that the life sentence was proper but that
the additional punishment for firearm use was not. We affirm the judgment of the
Court of Appeal, which reached the same conclusion, albeit for different reasons.
1
I
Freddie Mae Jackson testified that on June 14, 2004, the driver of a gray car
fired seven or eight shots out of the car‘s passenger window at a Bakersfield
apartment building, and she identified defendant as a passenger in the car.
Bakersfield Police Officer Mark Herman testified that defendant was a member of
the Bloods, a criminal street gang. Rejecting defendant‘s alibi defense, the jury
convicted him of shooting at an inhabited dwelling (Pen. Code, § 246)1 and of
conspiring to commit that crime (§ 182, subd. (a)(1)). The jury found, as to each
of these two offenses, that defendant committed the crime ―for the benefit of, at
the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members.‖
(§ 186.22, subd. (b)(1).) The jury also found, as to each crime, that defendant was
a principal in the offense and that at least one principal used a firearm within the
meaning of subdivisions (b) and (e)(1) of section 12022.53.
For the crime of shooting at an inhabited dwelling, the trial court —
applying the sentencing provision in subdivision (b)(4) of section 186.22
(pertaining to crimes committed to benefit a criminal street gang; hereafter section
186.22(b)(4)) — sentenced defendant to life in prison, with a minimum term of 15
years, and it added a 10-year term under subdivisions (b) and (e)(1) of section
12022.53 because a principal in the crimes had used a firearm in committing the
offense. For the crime of conspiracy, the trial court imposed a five-year prison
term, and an additional five years because defendant committed the crime to
benefit a criminal street gang (§ 186.22, subd. (b)(1)); the latter term was stayed
under section 654, which prohibits multiple punishment for the same act.
1
All further statutory citations are to the Penal Code.
2
In the Court of Appeal, defendant challenged the life term that was imposed
because his crime of shooting at an inhabited dwelling was committed to benefit a
criminal street gang. He relied on section 12022.53(e)(2), which provides: ―An
enhancement for participation in a criminal street gang . . . shall not be imposed
. . . in addition to‖ an enhancement under section 12022.53 for firearm use unless
the defendant personally discharged a firearm in the commission of the offense.
Noting that he did not personally use a firearm (his companion did, and defendant
was convicted as an accomplice), defendant argued on appeal that under this
subdivision the trial court‘s imposition of a 10-year sentence enhancement for use
of a firearm precluded it from also imposing a life term based on defendant‘s
participation in a criminal street gang.
In response to defendant‘s argument in the Court of Appeal, the Attorney
General contended that section 12022.53(e)(2), on which defendant relied, was
inapplicable because defendant had not committed a crime that was subject to
additional punishment under section 12022.53, and that instead of vacating
defendant‘s life sentence, the Court of Appeal should vacate the 10-year sentence
enhancement under section 12022.53‘s subdivisions (b) and (e)(1), which come
into play when a principal in the crime personally uses a firearm. Noting that
section 12022.53‘s additional punishments apply only to certain statutorily
specified crimes, the Attorney General asserted in the Court of Appeal that
defendant‘s convictions for shooting at an inhabited dwelling and for conspiracy to
commit that offense did not fall into any of the statutorily specified categories.
Under this view, defendant‘s life sentence (with a minimum term of 15 years) —
imposed by the trial court under section 186.22(b)(4)‘s street gang provision —
was valid, but imposition of the additional 10 years under subdivisions (b) and
(e)(1) of section 12022.53 was not.
3
The Court of Appeal agreed with the Attorney General. It upheld
defendant‘s life sentence under section 186.22(b)(4), but it directed the trial court
to vacate defendant‘s 10-year sentence enhancement imposed under subdivisions
(b) and (e)(1) of section 12022.53. The Court of Appeal rejected the trial court‘s
reasoning that because defendant‘s crime of shooting at an inhabited dwelling was
punishable by life imprisonment under section 186.22(b)(4) (pertaining to crimes
committed to benefit a criminal street gang), it was a ―felony punishable by death
or imprisonment in the state prison for life‖ (§ 12022.53, subd. (a)(17), italics
added), and therefore it was an offense to which section 12022.53‘s additional
penalties applied. In the Court of Appeal‘s view, defendant‘s life term under
section 186.22(b)(4) was a sentence ―enhancement‖ that was not attributable to his
crime of shooting at an inhabited dwelling (which by itself carries a range of three
prison terms, none of which is a life sentence); the court held that ―subdivision
(a)(17) of section 12022.53 is only applicable where the underlying felony itself
provides for a life sentence, without regard to enhancements that are not included
within the definition of the felony.‖ We granted defendant‘s petition for review.
II
This case, like the companion case of People v. Jones, supra, ___ Cal.4th
___, involves the interplay between two highly complex statutes: section 186.22,
which targets participants in criminal street gangs; and section 12022.53, also
known as ―the 10-20-life law‖ (People v. Oates (2004) 32 Cal.4th 1048, 1052),
which ―prescribes substantial sentence enhancements for using a firearm in the
commission of certain listed felonies‖ (ibid.). As we did in Jones, we begin our
analysis of the issues with a brief overview of these two statutes.
4
A. Section 186.22
Section 186.22 was enacted in 1988 as part of the California Street
Terrorism Enforcement and Prevention Act. This complex legislation became
even more so in 2000, when California‘s voters passed Proposition 21, an initiative
measure that made many changes to laws pertaining to juvenile offenders and
gang-related crimes. Section 186.22 was one of the affected laws. Pertinent here
is that statute‘s subdivision (b), which imposes substantial penalties for anyone
convicted of a crime committed ―for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.‖ (§ 186.22, subd.
(b)(1).)2
Under subdivision (b) of section 186.22, most felonies committed to benefit
a criminal street gang are subject to an additional prison term of two, three, or four
years, at the trial court‘s discretion (§ 186.22, subd. (b)(1)(A)); if the underlying
felony is a ―serious‖ felony, the additional prison term is five years (id., subd.
(b)(1)(B)); and if the underlying felony is a ―violent‖ felony, the additional term is
10 years (id., subd. (b)(1)(C)).3 If the felony that is committed to benefit a
criminal street gang is ―a home invasion robbery . . . ; carjacking . . . ; a felony
violation of Section 246 [the offense committed by defendant here], or a violation
of Section 12022.55‖ (§ 186.22, subd. (b)(4)(B), italics added), the penalty is ―an
indeterminate term of life imprisonment with a minimum term of the indeterminate
2
For the sake of simplicity, this opinion uses the shorthand phrase ―to benefit
a criminal street gang‖ to refer to crimes that, in the statutory language, were
committed ―for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members.‖ (§ 186.22, subd. (b)(1).)
3
Serious felonies are defined in subdivision (c) of section 1192.7; violent
felonies are defined in subdivision (c) of section 667.5.
5
sentence calculated as the greater of: [¶] (A) The term determined by the court
pursuant to Section 1170 for the underlying conviction, including any
enhancement applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 3046 . . . . [or] [¶] (B)
Imprisonment in the state prison for 15 years . . . .‖ (id., subd. (b)(4), italics added).
B. Section 12022.53
Section 12022.53 imposes increasingly severe sentence enhancements for
firearm use in the commission of certain felonies set forth in subdivision (a) of that
section. Among those felonies is ―[a]ny felony punishable by death or
imprisonment in the state prison for life.‖ (§ 12022.53, subd. (a)(17), italics
added.) (As noted earlier, defendant was sentenced to life imprisonment based on
the jury‘s finding that he committed the crime of shooting at an inhabited dwelling
[§ 246] to benefit a criminal street gang [§ 186.22(b)(4)].)
Under section 12022.53, a defendant‘s personal use of a firearm in the
commission of a specified felony results in an additional 10-year prison term
(§ 12022.53, subd. (b)), personal and intentional discharge of a firearm leads to an
additional 20 years (id., subd. (c)), while personal and intentional discharge of a
firearm resulting in death or great bodily injury to a person other than an
accomplice adds a prison term of 25 years to life (id., subd. (d)) to the sentence for
the underlying crime.
Subdivision (e) of section 12022.53 explains how a trial court is to sentence
a defendant in a case in which the provisions of sections 186.22 and 12022.53 both
apply. Subdivision (e)(1) of section 12022.53 provides: ―The enhancements
provided in this section shall apply to any person who is a principal in the
commission of an offense if both of the following are pled and proved: [¶] (A)
The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in
6
the offense committed any act specified in subdivision (b), (c), or (d).‖ Because
here a principal in the crime of shooting at an inhabited dwelling had personally
used a firearm, the trial court imposed the 10-year enhancement provided for in
subdivision (b) of section 12022.53. And section 12022.53(e)(2) provides: ―An
enhancement for participation in a criminal street gang pursuant to Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a
person in addition to an enhancement imposed pursuant to this subdivision, unless
the person personally used or personally discharged a firearm in the commission of
the offense.‖
Section 12022.53‘s subdivision (e)(1) has this effect: Ordinarily, section
12022.53‘s sentence enhancements apply only to personal use or discharge of a
firearm in the commission of a statutorily specified offense, but when the offense
is committed to benefit a criminal street gang, the statute‘s additional punishments
apply even if, as in this case, the defendant did not personally use or discharge a
firearm but another principal did. Section 12022.53(e)(2), however, limits the
effect of subdivision (e)(1). A defendant who personally uses or discharges a
firearm in the commission of a gang-related offense is subject to both the increased
punishment provided for in section 186.22 and the increased punishment provided
for in section 12022.53. In contrast, when another principal in the offense uses or
discharges a firearm but the defendant does not, there is no imposition of an
―enhancement for participation in a criminal street gang . . . in addition to an
enhancement imposed pursuant to‖ section 12022.53. (§ 12022.53(e)(2).)
III
The threshold inquiry we need to answer is this: When a defendant is
sentenced to a life term for the felony of shooting at an inhabited dwelling (§ 246)
because the defendant committed that crime to benefit a criminal street gang
(§ 186.22, subd. (b)(4)(B)), is that offense a ―felony punishable by . . .
7
imprisonment in the state prison for life‖ within the meaning of subdivision (a)(17)
of section 12022.53, thereby triggering the 10-year additional punishment under
subdivisions (b) and (e)(1) of section 12022.53 for personal use of a firearm by a
principal in the offense? As we explain in the companion case of People v. Jones,
supra, ___ Cal.4th ___, the answer to this question is ―yes.‖ Our reasoning
follows.
Shooting at an inhabited dwelling (§ 246) is, by itself, punishable by a term
of three, five, or seven years in prison, at the trial court‘s discretion. But when that
crime is committed to benefit a criminal street gang, as the jury here found, the
penalty is life imprisonment, with a minimum term of no less than 15 years.
(§ 186.22(b)(4).) As the companion case of People v. Jones, supra, ___ Cal.4th at
page ___ [p. 11] holds, that life term does not (contrary to the Court of Appeal‘s
conclusion in this case) constitute a sentence enhancement, because it is not
imposed in addition to the sentence for the underlying crime (here, shooting at an
inhabited dwelling); rather, it is an alternate penalty for that offense. Because the
felony that defendant committed (shooting at an inhabited dwelling) was
punishable by a life term under section 186.22(b)(4) (because it was committed to
benefit a criminal street gang), he committed a ―felony punishable by . . .
imprisonment in the state prison for life‖ within the meaning of subdivision (a)(17)
of section 12022.53. Both defendant and the Attorney General agree on this.4
They disagree, however, on the effect of section 12022.53(e)(2), which
states: ―An enhancement for participation in a criminal street gang pursuant to
4
Defendant has taken this position from the outset. The Attorney General,
however, has taken inconsistent positions. In the Court of Appeal, he
characterized a life term under section 186.22(b)(4) as a sentence enhancement,
but he now insists that it is an alternate penalty.
8
Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be
imposed on a person in addition to an enhancement imposed pursuant to this
subdivision, unless the person personally used or personally discharged a firearm
in the commission of the offense.‖
According to the Attorney General, section 12022.53(e)(2) does not limit
defendant‘s sentence in this case. Section 186.22, the Attorney General explains,
contains not only sentence enhancements — added terms of two, three, or four
years (§ 186.22, subd. (b)(1)(A)); five years (§ 186.22, subd. (b)(1)(B)); or 10
years (§ 186.22, subd. (b)(1)(C)) — but also penalty provisions. The latter are the
life sentence under section 186.22(b)(4), which applies here, and two others
described in subdivisions (b)(5) and (d) of section 186.22. Noting that section
12022.53(e)(2), by its terms, precludes the imposition of ―[a]n enhancement for
participation in a criminal street gang‖ (italics added) in addition to an increased
penalty imposed under section 12022.53, the Attorney General argues that section
12022.53(e)(2) does not prohibit imposition of a life term under section
186.22(b)(4) in addition to a sentence enhancement under section 12022.53 (as
occurred in this case), because the life term is not a sentence ―enhancement‖ but an
alternate penalty for the underlying crime of shooting at an inhabited dwelling,
which, by itself, is punishable by a prison term of three, five, or seven years, at the
trial court‘s discretion.
Defendant disagrees. He argues that the term ―enhancement,‖ as used in
section 12022.53(e)(2), encompasses not only an additional prison term but also
any greater term of imprisonment (such as a penalty provision) that is imposed
because the underlying crime was committed to benefit a criminal street gang.
Under this statutory construction, when (as here) a trier of fact finds to be true an
allegation justifying imposition of a life term under section 186.22(b)(4)‘s penalty
provision based on street gang participation, and finds to be true a sentence
9
enhancement allegation under section 12022.53 for firearm use, and when (as
here) section 12022.53‘s sentence enhancement applies because a principal other
than the defendant used a firearm in committing the offense, the trial court may not
impose the sentence enhancement under section 12022.53 in addition to a life term
under section 186.22(b)(4). As explained below, we agree with defendant.
―In construing a statute, our role is to ascertain the Legislature‘s intent so as
to effectuate the purpose of the law. [Citation.] In determining intent, we must
look first to the words of the statute because they are the most reliable indicator of
legislative intent. [Citation.]‖ (People v. Lopez (2003) 31 Cal.4th 1051, 1056.)
―We do not, however, consider the statutory language ‗in isolation.‘ [Citation.]
Rather, we look to ‗the entire substance of the statute . . . to determine the scope
and purpose of the provision . . . . [Citation.]‘ [Citation.] That is, we construe the
words in question ‗ ―in context, keeping in mind the nature and obvious purpose of
the statute . . . .‖ ‘ ‖ (People v. Murphy (2001) 25 Cal.4th 136, 142.)
With these principles in mind, we examine section 12022.53(e)(2). We
acknowledge that decisions of this court in the last decade have, in construing
various subdivisions of section 186.22 (the primary section referred to by the word
―enhancement‖ in section 12022.53(e)(2)), drawn a distinction between penalty
provisions and sentence enhancements in that section; these decisions have
construed the word ―enhancement‖ as meaning an additional term of
imprisonment, explaining that a penalty provision is not a sentence enhancement
because the former provides an alternate penalty rather than an additional
punishment. (See People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7
[characterizing various subdivisions of section 186.22 as either enhancements or
penalty provisions]; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899
[section 186.22‘s subdivision (d), which provides that any public offense
punishable as a felony or a misdemeanor is punishable by one, two, or three years
10
in prison when committed to benefit punishable by one, two, or three years in
prison when committed to benefit a criminal street gang, is a penalty provision, not
a sentence enhancement]; People v. Jefferson (1999) 21 Cal.4th 86, 101 [§ 186.22,
subd. (b)(4) is a penalty provision, not a sentence enhancement]; see also People
v. Acosta (2002) 29 Cal.4th 105, 118 [25-year minimum prison term described in
§ 667.61 is a penalty provision, not a sentence enhancement]; People v. Murphy,
supra, 25 Cal.4th at p. 154 [punishment described in § 666 is a penalty provision,
not a sentence enhancement].) The Attorney General urges us to give the word
―enhancement‖ in section 12022.53(e)(2) this same meaning.
If the cases cited in the preceding paragraph had already been decided when
the Legislature enacted section 12022.53, it would be reasonable to infer that the
Legislature was aware of the distinction this court has drawn between the sentence
enhancements and the penalty provisions set forth in section 186.22, and that the
Legislature intended the word ―enhancement‖ in the statute to have the narrow
meaning articulated by this court. That narrow meaning is this: The word
―enhancement‖ refers only to a sentence enhancement, not a penalty provision.
But the cases in question were decided after the Legislature‘s enactment of section
12022.53 in 1997.5 Thus, the Legislature did not have the benefit of this court‘s
later decisions that have given the term ―enhancement‖ the narrow meaning that
the Attorney General argues we should apply to that term in section
12022.53(e)(2).
5
In a footnote in People v. Bright (1995) 12 Cal.4th 652, decided a year
before the Legislature enacted section 12022.53, this court explained that a clause
in section 664 imposing a penalty of life imprisonment for an attempt to commit
willful, deliberate, and premeditated murder, is a penalty provision, not a sentence
enhancement. (People v. Bright, supra, 12 Cal.4th at p. 656, fn. 2.) But that case
did not discuss the gang-related sentence increases of section 186.22, at issue here.
11
It appears that the Legislature‘s use of the term ―enhancement‖ in section
12022.53(e)(2) was intended to refer broadly to any greater term of imprisonment
for a crime that, as here, is committed to benefit a criminal street gang. This
means that, as used in the statute, the word ―enhancement‖ includes not only the
sentence enhancements in section 186.22, but also the alternate penalty provisions
in that section. Our reasons follow.
Section 12022.53‘s sentencing scheme distinguishes between four types of
offenders. The first group consists of those offenders who personally used or
discharged a firearm in committing a gang-related offense that is specified in section
12022.53. These defendants are subject to both to the harsh enhancement provisions
of 12022.53 and the gang-related sentence increases of section 186.22. The second
group consists of accomplices to a gang-related offense specified in section
12022.53 in which, as here, not the defendant but another principal personally used
or discharges a firearm. They are subject to additional punishment under either
section 12022.53 or the gang-related sentence increases under section 186.22, but
not both. The third group consists of those who personally used or discharged a
firearm during an offense that is specified in section 12022.53 but is not gang
related. They are subject to additional punishment under section 12022.53, but
because the crime is not gang related, the gang-related sentence increases of section
186.22 do not apply. The fourth group consists of those who committed a crime that
is listed in section 12022.53 but is not gang related, and who did not personally use
or discharge a firearm. This last group of defendants is not subject either to the
gang-related sentence increases of section 186.22 (because the crime was not gang
related) or to the additional punishment provisions of section 12022.53 (because the
offender did not personally use or discharge a firearm).
The Attorney General‘s argument here that we construe the term
―enhancement‖ in section 12022.53(e)(2) as meaning an ―additional term of
12
imprisonment‖ — the narrow, technical meaning generally used in this court‘s past
decisions — would partially nullify, in some cases, the distinction that the
Legislature sought to draw between the first two of the four groups of offenders
described in the preceding paragraph: those who personally used firearms in gang-
related felonies, and those who were merely accomplices to such offenses. To
accept the Attorney General‘s statutory interpretation would have the following
effect: A defendant who in a gang-related offense personally used or discharged a
firearm would be punished more harshly than an accomplice to such an offense in
cases in which an increased sentence is imposed under a sentence enhancement
provision of section 186.22; but when an increased sentence is imposed under a
penalty provision of section 186.22, the perpetrator who personally used or
discharged the gun and the accomplice who did not do so would receive equally
severe penalties. To allow such a result would be inconsistent with the
Legislature‘s apparent goal, in section 12022.53‘s subdivision (e), of reserving the
most severe sentences for those who personally used or discharged a firearm in the
commission of a gang-related crime.
Unlike the Attorney General‘s interpretation, defendant‘s construction of
the word ―enhancement‖ in section 12022.53(e)(2) is consistent with the
Legislative purpose described above. Under defendant‘s statutory interpretation, a
defendant who personally used or discharged a firearm in a gang-related felony
specified in section 12022.53 will be subject to greater punishment for both gang
participation under section 186.22 and firearm use under section 12022.53, but an
accomplice who, as defendant here, did not personally use or discharge a firearm
would be subject to an increased sentence under only one of those two statutes.
Nothing in this opinion should be read as undermining the validity of the
strict distinction this court has drawn in the past between sentence enhancements
and penalty provisions in other contexts. (See People v. Briceno, supra, 34 Cal.4th
13
at p. 460, fn. 7; Robert L. v. Superior Court, supra, 30 Cal.4th at p. 899; People
v. Acosta, supra, 29 Cal.4th at p. 118; People v. Murphy, supra, 25 Cal.4th at
p. 154; People v. Jefferson, supra, 21 Cal.4th at p. 101.) This is a distinction that
the Legislature may want to consider in any future legislation on the subject.
For the reasons described above, we conclude that the word ―enhancement‖
in section 12022.53(e)(2) refers to both the sentence enhancements in section 186.22
and the penalty provisions in that statute. Thus, that provision barred the trial court
here from imposing both the penalty of a life term under section 186.22(b)(4) and
the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section
12022.53. Which of the two should the court have imposed? According to
defendant, only the 10-year sentence enhancement. Defendant relies on the
language in section 12022.53(e)(2) stating that enhancements for street gang
participation ―shall not be imposed . . . in addition to an enhancement imposed
pursuant to this subdivision, unless the [defendant] personally used or personally
discharged a firearm in the commission of the offense.‖ (Italics added.) Relying on
the italicized words in the statutory language just quoted, defendant argues that a
trial court should impose only the applicable sentence enhancement under section
12022.53 (here the 10-year enhancement under § 12022.53, subds. (b) and (e)(1))
when, as here, a defendant does not personally use or discharge a firearm; to impose
―in addition to‖ that sentence enhancement, the life sentence called for under section
186.22(b)(4) would, according to defendant, be improper. We disagree.
Defendant‘s proposed interpretation of the words would give him an unjust
windfall, as explained below. If the jury had found only that defendant had
committed the crime of shooting at an inhabited dwelling (§ 246) to benefit a
criminal street gang (§ 186.22), and nothing else, he would be subject to the
penalty of a life term under section 186.22(b)(4). But under defendant‘s
reasoning, the jury‘s additional finding of firearm use would, under the ―in
14
addition to‖ language of section 12022.53(e)(2), preclude imposition of the life
term set forth in section 186.22(b)(4), permitting imposition of only the 10-year
additional punishment set forth in section 12022.53‘s subdivisions (b) and (e)(1).
This result would be contrary to the Legislature‘s declared purpose in enacting
section 12022.53: to impose ―substantially longer prison sentences . . . on felons
who use firearms in the commission of their crimes, in order to protect our citizens
and to deter violent crime.‖ (Legislative finding, Stats. 1997, ch. 503, § 1
[uncodified provision], italics added.)
Moreover, defendant‘s statutory construction would be inconsistent with
section 12022.53‘s subdivision (j). That provision states in part: ―When an
enhancement specified in this section has been admitted or found to be true, the
court shall impose punishment for that enhancement pursuant to this section rather
than imposing punishment authorized under any other provision of law, unless
another enhancement provides for a greater penalty or a longer term of
imprisonment.‖ (Italics added.) Thus, consistent with that statutory provision, the
trial court here should have imposed the greater penalty (the life term under section
186.22(b)(4)), rather than the lesser punishment (the 10-year sentence
enhancement under section 12022.53‘s subdivisions (b) and (e)(1)).
Defendant concedes that his reading of section 12022.53(e)(2) would make
that provision inconsistent with subdivision (j) of the same statute, which we
quoted in the preceding paragraph. To resolve this alleged inconsistency between
the two subdivisions, defendant asserts, we should ignore subdivision (j), which is
the more general provision, and apply only subdivision (e)(2), the more specific
provision. Doing so, defendant argues, would be consistent with the rule that
―particular or specific provisions will generally take precedence over conflicting
general provisions‖ (People v. Campbell (1995) 40 Cal.App.4th 1666, 1672, fn. 6).
15
But the two subdivisions just mentioned would be in conflict only if we
were to accept defendant‘s interpretation of the phrase ―in addition to‖ in section
12022.53(e)(2). More persuasive is the Attorney General‘s interpretation of that
phrase. This is why: (1) the Attorney General‘s interpretation is consistent with
the objective of section 12022.53, which was to impose longer punishment for
those committing felonies involving firearm use (see p. 15, ante); and (2) as
explained below, under the Attorney General‘s interpretation there is no conflict
between subdivisions (e)(2) and (j) of section 12022.53. As construed by the
Attorney General, the phrase ―in addition to‖ in section 12022.53(e)(2) does not
require the trial court to select a sentence enhancement under section 12022.53
over a sentence enhancement or a penalty provision that is set forth in section
186.22 if application of the latter would result in a greater punishment; what the
trial court cannot do is to impose punishment under both section 186.22 and
section 12022.53. In choosing which of those two provisions to apply, the trial
court must, consistent with section 12022.53‘s subdivision (j), choose the
provision that will result in a greater sentence. In this case, the greater penalty
would be the life term under the alternate penalty provision in section
186.22(b)(4), not the 10-year sentence enhancement provided for in subdivisions
(b) and (e)(1) of section 12022.53.
IV. CONCLUSION AND DISPOSITION
The trial court erred in sentencing defendant to both the life term under
section 186.22(b)(4) and the 10-year sentence enhancement under subdivisions (b)
and (e)(1) of section 12022.53. The Court of Appeal was correct in ordering the
10-year sentence enhancement stricken, but it was incorrect in its reason for doing
so (see pp. 7-8, ante): that defendant had not committed a ―felony punishable by
. . . imprisonment in the state prison for life‖ (§ 12022.53, subd. (a)(17)). Because
16
the Court of Appeal‘s disposition was correct, we affirm its judgment.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
PERLUSS, J.*
*
Presiding Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Brookfield
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 10/12/06 – 5th Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S147980Date Filed: August 31, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Kern
Judge: James M. Stuart
__________________________________________________________________________________
Attorneys for Appellant:
Corinne S. Shulman and Mark D. Greenberg, under appointments by the Supreme Court, for Defendant andAppellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.Farrell, Assistant Attorney General, Julie A. Hokans, Janet Neeley, Peter W. Thompson and Kathleen A.
McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark D. Greenberg484 Lake Park Avenue, #429
Oakland, CA 94610
(510) 452-3126
Kathleen A. McKenna
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-7876
Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. This case includes the following issue: Is a violation of Penal Code section 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(4)(B), a "felony punishable by . . . imprisonment in the state prison for life" within the meaning of section 12022.53, subdivision (a)(17), such that sentence can be enhanced under subdivisions (b) and (e) of section 12022.53 for a principal's personal use of a firearm? (See People v. Jefferson (1999) 21 Cal.4th 86, 101; People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 08/31/2009 | 47 Cal. 4th 583, 213 P.3d 988, 98 Cal. Rptr. 3d 535 | S147980 | Review - Criminal Appeal | opinion issued | PEOPLE v. JONES (S148463) |
| 1 | The People (Plaintiff and Respondent) Represented by Kathleen Anne McKenna Office of the Attorney General 2550 Mariposa Mall, Room 5090 Fresno, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Peter William Thompson Office of the Attorney General P.O. Box 944255 Sacramento, CA |
| 3 | Brookfield, Byron Jerome (Defendant and Appellant) Pleasant Valley State Prison P. O. Box 8503 Coalinga, CA 93210 Represented by Mark D. Greenberg Attorney at Law 484 Lake Park Avenue, Suite 429 Oakland, CA |
| Opinion Authors | |
| Opinion | Justice Joyce L. Kennard |
| Disposition | |
| Dec 31 1969 | Opinion: Affirmed |
| Dockets | |
| Dec 31 1969 | Received premature petition for review Byron Jerome Brookfield, Appellant by Corinne S. Shulman, counsel |
| Dec 31 1969 | Case start: Petition for review filed |
| Dec 31 1969 | Record requested |
| Dec 31 1969 | Received Court of Appeal record three doghouse |
| Dec 31 1969 | Time extended to grant or deny review to and including February 9, 2007, or the date upon which review is either granted or denied. |
| Dec 31 1969 | Petition for review granted (criminal case) Baxter, J., was recused and did not participate. Moreno, J., was absent and did not participate. Votes: George, C. J., Kennard, Werdegar and Corrigan, JJ. |
| Dec 31 1969 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Corinne Schulman is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or befroe thirty (30) days from the date of this order. |
| Dec 31 1969 | Issues ordered limited The issues to be briefed and argued in this matter, in which the court granted review on January 17, 2007, are limited to whether a violation of Penal Code section 246 (shooting at an inhabited dwelling) that is committed to benefit a criminal street gang (Pen. Code, ? 186.22, subd. (b)(4)(B)), is a "felony punishable by . . . imprisonment in the state prison for life" (Pen. Code, ? 12022.53, subd. (a)(17)), such that the sentence for the violation may be enhanced under subdivisions (b) and (e) of Penal Code section 12022.53 for a principal's personal use of a firearm. (See People v. Jefferson (1999) 21 Cal.4th 86, 101; People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) |
| Dec 31 1969 | Opening brief on the merits filed counsel for appellant |
| Dec 31 1969 | Answer brief on the merits filed counsel for respondent crc 8.25(b) |
| Dec 31 1969 | Reply brief filed (case fully briefed) counsel for aplt. |
| Dec 31 1969 | Filed: counsel for aplt. (Brookfiled) Notice of Unavailability, 12-1-07 through 12-15-07 and January 8, 2008 through January 30, 2008. |
| Dec 31 1969 | Filed: letter from counsel for respondent dated December 14, 2007, to notify the court that counsel will be unvailable for oral arguements from May 5, 2008 thru May 20, 2008. |
| Dec 31 1969 | Filed: letter from counsel for aplt. to notify the court of unvailability between June 24, and June 30, 2008, July 29 and August 20, 2008., requests that oral argument not be scheduled on those periods. |
| Dec 31 1969 | Filed: counsel for aplt. Application to be relieved. |
| Dec 31 1969 | Order filed The appointment of Corinne Shulman as counsel for appellant is hereby terminated. Mark Greenberg is hereby appointed as replacement counsel to represent appellant on the appeal now pending in this court. |
| Dec 31 1969 | Compensation awarded counsel Atty Shulman Werdegar, J., was absent and did not participate. |
| Dec 31 1969 | Justice pro tempore assigned Perluss, J.P.T. 2/7 |
| Dec 31 1969 | Case ordered on calendar to be argued Tuesday, June 2, 2009, at 2:00 p.m., in Los Angeles |
| Dec 31 1969 | Cause argued and submitted |
| Dec 31 1969 | Notice of forthcoming opinion posted To be filed on Monday, August 31, 2009 at 10 a.m. |
| Dec 31 1969 | Opinion filed: Judgment affirmed in full The trial court erred in sentencing defendant to both the life term under section 186.22(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53. The Court of Appeal was correct in ordering the 10-year sentence enhancement stricken, but it was incorrect in its reason for doing so (see pp. 7-8, ante): that defendant had not committed a "felony punishable by ... imprisonment in the state prison for life" (? 12022.53, subd. (a)(17)). Because the Court of Appeal's disposition was correct, we affirm its judgment. OPINION BY: Kennard, J. -- joined by: George, C.J., Werdegar, Chin, Moreno, Corrigan, JJ., and Perluss, J.* * Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven, Assigned by the Chief Justice pursuant to article VI section 6 of the California Constitution. |
| Briefs | |
| Dec 31 1969 | Opening brief on the merits filed |
| Dec 31 1969 | Answer brief on the merits filed |
| Dec 31 1969 | Reply brief filed (case fully briefed) |
| Jun 8, 2012 Annotated by Victoria Phillips | - Facts - Cal. Penal Code § 186.22(b) "imposes substantial penalties for anyone convicted of a crime committed 'for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" Cal. Penal Code § 12022.53(a)(17) "imposes increasingly severe sentence enhancements for firearm use in the commission of . . . '[a]ny felony punishable by death or imprisonment in the state prison for life.'" Section (e)(2) of Cal. Penal Code § 12022.53 provides: "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." - Procedural History - - Issues - (2) Given the answer to (1), what is the defendant's proper prison sentence? - Holding - (2) The trial court erred in applying sentences under both §186.22(b)(4) and §12022.53(b) and (e)(1). It should have applied the longer of the two sentences, as required by §12022.53(j), which is the life sentence. - Analysis - Enhancement for discharging a firearm (§12022.53(e)(2)) Interpreting meaning of "enhancement" in § 12022.53(e)(2) Given that determination, the court further concluded that the defendant could only receive either the life sentence (for a gang-related crime) or the 10-year enhancement (for discharge of a firearm), but not both. (2) The life prison term was the longer of the two and, thus, the correct sentence. - Cited or Related Cases - People v. Oates, 32 Cal. 4th 1048 (2004), 12 Cal. Rptr. 3 325, 88 P.3d 56 , cited as calling Penal Code § 186.22 “the 10-20-life law.” People v. Briceno, 34 Cal. 4th 451 (2004) Robert L. v. Superior Court, 30 Cal. 4th 894 (2003) People v. Jefferson, 21 Cal. 4th 86 (1999) People v. Acosta, 29 Cal. 4th 105 (2002) People v. Murphy, 25 Cal. 4th 81 (2011) People v. Bright, 12 Cal. 4th 652 (1996) People v. Campbell, 40 Cal. App. 4th 1666 (1995) - Cited Statutes, Propositions, Acts - Cal. Penal Code § 12022.53(a)(17), Enhancement for discharging a firearm California Street Terrorism Enforcement and Prevention Act - Tags - By Tori Phillips |
