Supreme Court of California Justia
Docket No. S132144
People v. Palacios

Filed 7/12/07


Plaintiff and Respondent,
) Ct.App.
Defendant and Appellant.
Super. Ct. No. SCN144768

We hold that the sentence enhancement provisions of Penal Code section
12022.53 are not limited by the multiple punishment prohibition of section 654.1
Section 12022.53 prescribes substantial sentence enhancements for using a firearm
in the commission of certain felonies. Here, three enhancements were imposed
under subdivision (d) of that statute based on a single shot fired at a single victim
during the simultaneous commission of three qualifying offenses. The Court of
Appeal held that punishment on all but one of these enhancements must be stayed
pursuant to the multiple punishment prohibition of section 654, even though
section 654 did not preclude separate punishment for each of the underlying
offenses. We conclude that imposition of punishment for each of the multiple
section 12022.53 enhancements in these circumstances is required. To hold

All further statutory references are to the Penal Code. Section 12022.53
was amended after commission of the crimes at issue here. Because those
amendments do not affect our analysis, we will quote from the current version of
the statute.

otherwise would contravene the plain language of section 12022.53. Thus, we
reverse the judgment of the Court of Appeal.
On May 3, 2002, 19-year-old Brian Jones left work in Chula Vista around
2:00 a.m. and stopped at a nearby gas station. Shana Dreiling, a stranger,
approached him and asked for a ride. Jones declined and Dreiling asked for
change to make a phone call. As Jones reached into his car for money, defendant
approached from behind, said he had a gun, and ordered Jones into the car.
Dreiling got in the front passenger seat; defendant sat in the back.
Following defendant’s orders, Jones drove to a location where he changed
seats with Dreiling. Defendant ordered Dreiling to drive south on the freeway.
Defendant told Jones he would drop him where he could not immediately call the
police. He gave Jones money, saying it was taxi fare. As they neared the Mexican
border, defendant told Dreiling to turn around and return north.
When they arrived at the Miramar section of San Diego, defendant told
Dreiling to drive off the freeway. Apparently familiar with the area, defendant
directed Dreiling through several turns until they arrived at a park. Defendant
ordered Jones to follow Dreiling down a trail. Defendant, holding the gun,
followed Jones.
After walking about 40 feet, defendant stopped and ordered Jones to
remove his clothes, some of which defendant later took with him. At defendant’s
direction, Jones lay facedown on the ground, with his arms crossed beneath his
head. Defendant told him to count to 100 and that he would be gone by the time
Jones finished counting. As Jones counted to five or six, defendant fired a shot,
hitting Jones in the upper right arm. Jones lay motionless, pretending to be dead.
When he was certain he was alone, Jones walked out of the park to a nearby house
where the resident called the police.
Later that morning, defendant and Dreiling drove Jones’s car to Escondido,
where they committed numerous crimes against Grant Carr, including residential
burglary, robbery and kidnapping. Carr’s wife escaped and alerted police. During
a standoff at Carr’s home, Dreiling was fatally shot and defendant was arrested.
Jones’s driver’s license, credit cards and check card were found in Dreiling’s
pocket. Jones’s wallet and clothing were found in his damaged car after it was
recovered in Escondido.
Only sentencing issues regarding the crimes against Jones are at issue here.
Defendant was convicted of attempted premeditated murder (§§ 187, subd. (a),
664, subd. (a)); kidnapping for robbery (§ 209, subd. (b)(1)); kidnapping for
carjacking (§ 209.5, subd. (a)); carjacking (§ 215, subd. (a)); and robbery (§ 211).
The jury found that defendant discharged a firearm and personally inflicted great
bodily injury when committing these offenses. (§§ 12022.53, subd. (d), 12022.7,
subd. (a).) Defendant was also convicted of assault involving personal use of a
firearm. (§§ 245, subd. (a)(2), 12022.5, subd. (a)(1).)
Defendant was sentenced to three consecutive terms of life imprisonment
with the possibility of parole for the attempted murder and the two kidnapping
convictions. The trial court added a section 12022.53, subdivision (d)
enhancement of 25 years to life for each of these convictions. Sentencing on the
remaining counts and enhancements was stayed pursuant to section 654.
On appeal, defendant argued the imposition of sentence for three section
12022.53 enhancements violated section 654’s bar against multiple punishment
because he fired one shot at a single victim. The Court of Appeal agreed, ruling:
“[Defendant] discharged his gun and therefore he should be held accountable and
be punished for that conduct. However, the fact the aggravated kidnappings were
technically ongoing at the time he discharged the gun does not make [defendant]
more culpable so as to justify imposing three times the punishment. The discharge
of the gun was not made more dangerous or more harmful merely because the
aggravated kidnappings had technically not yet ended. There was only one victim
and only a single act of discharging a firearm. [Defendant’s] punishment should
be commensurate with his conduct, that is, he should be punished once for his
discharge of the firearm, not three times.”2
We granted the People’s petition for review to determine whether section
654 bars imposition of sentence for multiple firearm enhancements under section
“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.’ ” (People v. Garcia (2002) 28 Cal.4th 1166,
1172, quoting Stats. 1997, ch. 503, § 1.) Section 12022.53, subdivision (a)
specifies the felonies to which the statute applies, and then the statute sets out
three sentence enhancements for personal use or discharge of a firearm in the
commission of those felonies: Subdivision (b) provides a 10-year enhancement
for using a firearm; subdivision (c) a 20-year enhancement for intentionally firing
the gun; and subdivision (d) a 25-years-to-life enhancement for intentional
discharge causing great bodily injury or death to someone other than an
accomplice.3 (§ 12022.53, subds. (b), (c) and (d).) Each subdivision declares that
its enhancements “shall” be applied “[n]otwithstanding any other provision of
law” and as “an additional and consecutive term of imprisonment.” (Ibid., italics

The Court of Appeal instructed the trial court to stay imposition of the
section 12022.53, subdivision (d) enhancements attached to the two kidnapping
convictions and also to strike the carjacking conviction as a lesser included offense
of kidnapping for carjacking.
The statutory scheme distinguishes among different levels of involvement
of a firearm in the commission of a crime. Simple firearm use may include the
threatening display of a gun or its use as a cudgel. Discharge of a firearm requires
that the weapon actually be fired. (See People v. Masbruch (1996) 13 Cal.4th
1001, 1007; People v. Wims (1995) 10 Cal.4th 293, 302-303.)

added; People v. Shabazz (2006) 38 Cal.4th 55, 68.) The only limitation to this
rule is found in subdivision (f) as discussed further below.4
Section 12022.53, subdivision (d), the enhancement at issue here, provides
in part: “Notwithstanding any other provision of law, 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, shall be punished by an additional and consecutive term
of imprisonment in the state prison for 25 years to life.” The specified felonies to
which section 12022.53, subdivision (d) applies include those listed in subdivision
(a) as well as section 246 (shooting at an inhabited dwelling and other occupied
targets) and section 12034, subdivisions (c) and (d) (discharging a firearm from a
motor vehicle). (§ 12022.53, subd. (d).)
Further, section 12022.53 subdivision (h) provides: “Notwithstanding
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
Defendant’s convictions for attempted murder, kidnapping for carjacking,
and kidnapping for robbery are qualifying felonies. (§ 12022.53, subd. (a)(1), (3),
(18).) When defendant shot Jones, attempting to kill him, the kidnapping offenses
were still ongoing. “[T]he crime of kidnapping continues until such time as the
kidnapper releases or otherwise disposes of the victim and [the defendant] has
reached a place of temporary safety . . . .” (People v. Barnett (1998) 17 Cal.4th
1044, 1159.) By finding the section 12022.53, subdivision (d) enhancement
allegations to be true (hereafter subdivision (d) enhancements), the jury
necessarily determined that defendant fired the gun and caused great bodily injury

Additionally, a section 12022.53 enhancement must be imposed unless the
defendant is subject to a different enhancement provision that specifies a longer
term. (§ 12022.53, subd. (j); People v. Shabazz, supra, 38 Cal.4th at p. 70.)

during the commission of each of the three offenses. Thus, in this case, section
12022.53 mandates punishment for each of the subdivision (d) enhancements.
The question is whether section 654 precludes punishment for more than
one section 12022.53 enhancement when each is based on a single act committed
against a single victim, although in the commission of separate crimes. Section
654, subdivision (a) 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.” Section 654
“protects against multiple punishment not multiple conviction. [Citation.]”
(People v. Harrison (1989) 48 Cal.3d 321, 335.) We have extended the
protections of section 654 to cases in which several offenses are committed during
a course of conduct deemed to be indivisible in time. (Ibid.)
People v. Oates (2004) 32 Cal.4th 1048 (Oates), we considered whether
section 654 barred imposition of sentence for multiple section 12022.53
enhancements when the defendant and his companions fired two shots at a group
of five people, but hit only one of them. Oates was convicted of five counts of
attempted premeditated murder and the jury found enhancements under 12022.53
applied as to each count.
We first determined that the language, legislative history, and purpose
underlying section 12022.53 required imposition of subdivision (d) enhancements
for each attempted murder conviction. (Oates, supra, 32 Cal.4th at pp. 1052-
1062.) By its terms, subdivision (d) enhancements apply 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.’ Based on the single injury 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
. . . .” (Oates, supra, at p. 1055.)

We then considered whether, under section 654, Oates could be punished
for multiple subdivision (d) enhancements based on his single act of injuring
Barrera. The People advanced alternative arguments: 1) section 654 does not
apply to enhancements; 2) the express language, legislative history, and policies
behind section 12022.53 create a broad exception to section 654; and 3) section
654 does not overcome the judicially created exception for cases involving
multiple victims. (Oates, supra, 32 Cal.4th at p. 1062.) We found the People’s
last argument dispositive and concluded that the “multiple victim” exception to
section 654 permitted imposition of sentencing on multiple subdivision (d)
enhancements. (Oates, at p. 1063.) We did not address the People’s other
arguments. (Id. at p. 1066, fn. 7.)
Here, while committing multiple qualifying offenses, defendant fired one
shot at a single victim. The People urge the remaining arguments left unresolved
in Oates, supra, 32 Cal.4th 1048. We are persuaded that, in enacting section
12022.53, the Legislature made clear that it intended to create a sentencing scheme
unfettered by section 654. In light of this conclusion we need not address the
People’s argument that section 654 generally does not apply to enhancements. We
leave that question for another day.
The first principle of statutory interpretation requires that we turn initially
to the words of the statute to ascertain the Legislature’s intent. “[I]f ‘ “the
statutory language is clear and unambiguous, there is no need for construction and
courts should not indulge in it. [Citation.] The plain language of the statute
establishes what was intended by the Legislature.” ’ [Citation.]” (People v.
Johnson (2006) 38 Cal.4th 717, 723-724.) Here, subdivisions (b), (c) and (d) of
section 12022.53 repeatedly and expressly mandate that “[n]otwithstanding any
other provisions of law,” the defendant “shall be punished” by a consecutive and
additional term of imprisonment.
We considered the broad meaning of the phrase “notwithstanding any other
provision of law” in People v. Benson (1998) 18 Cal.4th 24 (Benson). There, we
held that a conviction for which sentencing was stayed under section 654 may
nevertheless constitute a strike under the Three Strikes law. We noted that the
language of the Three Strikes law (§ 1170.12, subd. (b)(1)) “unequivocally
establishes that the electorate intended to qualify as separate strikes each prior
conviction that a defendant incurred relating to the commission of a serious or
violent felony, notwithstanding the circumstance that the trial court, in the earlier
proceeding, may have stayed sentence on one or more of the serious or violent
felonies under compulsion of the provisions of section 654.” (Benson, at p. 31.)
The terms we deemed to override section 654 include the provision that a strike
for purposes of the Three Strikes law “ ‘shall be defined’ ” as set forth in section
1170.12, subdivision (b) “ ‘[n]otwithstanding any other provision of law . . . .’ ”
(Benson, at p. 31.) We stated further, “The subdivision also provides explicitly
that a stayed or suspended sentence is not exempt from qualifying as a strike (§
1170.12, subd. (b)(1)(B)), a provision that is not limited to sentences stayed or
suspended for purposes other than those set forth in section 654.” (Ibid.)
Although the “stay of execution of sentence” language from section
1170.12, subdivision (b)(1)(B) provided additional support for our conclusion, we
found the phrase “notwithstanding any other provision of law” means what it says.
(Benson, supra, at p. 32; see also People v. Garcia (2001) 25 Cal.4th 744, 757
[holding that “the plain and unambiguous language of the Three Strikes law
discloses an intent to impose the enhanced, doubled sentence,” relying in part on
section 1170.12, subdivision (d)(1), which provides that “ ‘in every case’ ” in
which defendant has an applicable felony conviction, the Three Strikes law shall
be applied “ ‘[n]otwithstanding any other provision of law’ ”].) Here, the broad
and unambiguous scope of “[n]otwithstanding any other provision of law”
overrides the application, if any, of section 654 to the imposition of punishment
prescribed in section 12022.53, subdivisions (b), (c) and (d).
Defendant argues that because the Legislature did not use the phrase
“notwithstanding any other provision of law” as a preface to the entire statute, the
phrase must be read, logically and reasonably, solely in the context of the
particular subdivision in which it appears. He asserts that the phrase as used in
section 12022.53, subdivisions (b), (c) and (d) ensures only that a defendant “shall
be punished” by the section 12022.53 enhancement and not by other related
firearm and great bodily injury enhancements. In other words, “[n]otwithstanding
any other provision of law” refers to other applicable sentencing enhancements
and does not include section 654. He cites no persuasive authority in support of
this position and we reject it as contrary to the clear expression of the Legislature.
People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero), in which we determined that the “notwithstanding any
other provision of law” language in the Three Strikes law did not preclude trial
courts from exercising their discretion under section 1385 to strike prior felony
convictions. Section 667, subdivision (f)(1) provides that “[n]otwithstanding any
other law,” the Three Strikes law shall be applied in every case in which the
defendant has a prior qualifying felony conviction. An amicus curiae brief in
support of the People argued that the phrase “[n]otwithstanding any other
provision of law” encompassed section 1385 and thus precluded a court from
employing its powers under section 1385 to reduce a sentence. (Romero, at p.
523.) We cautioned, however, that “we will not interpret a statute as eliminating
courts’ power under section 1385 ‘absent clear legislative direction to the
contrary.’ [Citations.]” (Romero, at p. 518.) We observed that subdivision (f)(2)
of section 667 expressly authorizes the prosecutor to move to strike prior felony
convictions under section 1385. (Romero, at p. 524.) By including this express
reference to the statute, the Legislature necessarily intended that section 1385
remain in effect, allowing a court to exercise its authority to dismiss prior felony
convictions on its own motion. We stated, “Thus, the command of the Three
Strikes law―that it shall be applied ‘[n]otwithstanding any other law’―cannot
literally be followed without reference to and, if appropriate, action ‘pursuant to,’
section 1385.” (Romero, at p. 524.)

Romero does not help defendant here. Section 12022.53 does not modify
its “[n]otwithstanding any other provision of law” language with any express or
implicit reference to section 654. Instead, the Legislature has unequivocally stated
that, “[n]otwithstanding any other provision of law,” a person who uses or
discharges a firearm in the commission of a qualifying offense shall be punished
by a section 12022.53 enhancement. (Italics added.) This command can literally
be followed without reference to section 654. Indeed, under the plain meaning of
the phrase “notwithstanding any other provision of law,” it must be.
Defendant nevertheless maintains that if the Legislature had intended to
include section 654 within the scope of the phrase “notwithstanding any other
provision of law,” it would have done so expressly. He asserts the Legislature
would not have employed such a nonspecific phrase to eliminate the venerable
principles embodied in section 654. Analogizing to section 1385, he quotes the
Court of Appeal in People v. Wilson (2002) 95 Cal.App.4th 198: “When the
Legislature intends to divest trial courts of authority to strike an enhancement, it
does not rely on nonspecific language, such as ‘notwithstanding any other
provision of law’ (Pen. Code, § 12022.53, subds. (b), (c), (d)), but rather expressly
divests trial courts of authority to strike (Pen. Code, § 12022.53, subd. (h)).”
(People v. Wilson, at p. 202.)
Benson, supra, 18 Cal.4th 24, 32-33, we noted that courts have
repeatedly upheld the Legislature’s power to override section 654 by enactments
that do not expressly mention the statute. In People v. Hicks (1993) 6 Cal.4th 784,
791-792, we held that the Legislature, in enacting section 667.6, subdivision (c),
was not required to cite section 654 to demonstrate its intent to create an exception
to its provisions. In People v. Ramirez (1995) 33 Cal.App.4th 559, 573, the court
held that, with regard to 667, subdivision (e), “A statute which provides that a
defendant shall receive a sentence enhancement in addition to any other authorized
punishment constitutes an express exception to section 654.” In People v. Powell
(1991) 230 Cal.App.3d 438, 441, a case predating the enactment of the Three
Strikes law, the court concluded that Health and Safety Code section 11370.2
authorized double punishment in addition to any other authorized penalty, thus
prevailing over section 654 even though section 654 was not mentioned in the
Another provision of section 12022.53 is germane to the questions at issue
here. In subdivision (f), the Legislature expressly addressed the issue of multiple
enhancements but chose to do so per crime. Section 654, on the other hand,
prohibits multiple punishment per act. Subdivision (f) provides in part: “Only 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.” (§ 12022.53, subd. (f), italics added.)

Defendant contends that even if the “notwithstanding any other provision of
law” language was initially sufficient to preclude application of section 654, later
legislative action eliminated such preclusion. He reasons as follows: In 1998, a
year after the enactment of section 12022.53, the Legislature amended section
1170.11 to include section 12022.53 as a “specific enhancement” subject to the
one-third calculation for consecutive sentencing of subordinate terms. (Stats.
1998, ch. 936, § 11; People v. Moody (2002) 96 Cal.App.4th 987, 992.)
Consecutive sentencing is governed by section 1170.1 and is “subject to Section
654.” (§ 1170.1, subd. (a).) Therefore, according to defendant, because section
12022.53 is a specific enhancement for purposes of consecutive sentencing, and
because consecutive sentencing is subject to section 654, then section 1170.1
necessarily overrides the “[n]otwithstanding any other provision of law” language
of section 12022.53, as least as to the application of section 654.

Defendant goes too far. Section 1170.1 describes the computation of
principal and subordinate terms when consecutive sentences are imposed. The
reference to section 654 in section 1170.1 simply ensures that consecutive
sentences for subordinate terms do not result in multiple punishment. By
including section 12022.53 as a “specific enhancement” for purposes of section
1170.1, the Legislature was not broadly subjecting section 12022.53 to the
operation of section 654. In any event, the indeterminate 25-years-to-life term of
section 12022.53, subdivision (d) is not subject to the one-third limitation of
section 1170.1. (People v. Mason (2002) 96 Cal.App.4th 1, 14-15.)

Oates, supra, 32 Cal.4th 1048, we explained that the intent of section
12022.53, subdivision (f) was to punish the use of firearms linked to the
commission of applicable crimes, not discrete acts. Oates argued that although he
fired his gun at five people, only one was injured. He claimed he should have
received a single subdivision (d) enhancement as to that conviction and
subdivision (c) enhancements on each of the remaining attempted murder counts.6
(Oates, at p. 1056.) We rejected this argument: “[B]ecause 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.” (Ibid.,
italics added.) “The enactment of [subdivision (f)] 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 unis 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.]’ [Citation.] Here, there is no evidence of a
contrary legislative intent.” (Id. at p. 1057.) Thus in section 12022.53, the
Legislature has chosen to limit enhancements based on the crimes committed
rather than an analysis of individual acts as called for in section 654. This
differing approach, read in conjunction with the “[n]otwithstanding any other

In Oates, as to each of the five attempted murder convictions, the jury
found true enhancements under subdivisions (b), (c) and (d) of section 12022.53.
(Oates, supra, 32 Cal. 4th at p. 1053.) Here, only subdivision (d) enhancements
were alleged and found true.

provision of law language” contained in section 12022.53, subdivisions (b), (c)
and (d), supports our conclusion regarding the Legislature’s intent.
One further aspect of the statute undermines defendant’s argument.
Enhancements for some of the felonies specifically included in section 12022.53
would otherwise be barred if section 654 applied. By including them, the
Legislature demonstrated its intent that multiple punishment be imposed for their
commission. For example, the qualifying offenses listed in subdivision (a) include
section 245, subdivision (d), assault with a firearm on a peace officer or
firefighter. (§ 12022.53, subd. (a)(7).) Offenses for which the 12022.53,
subdivision (d) enhancement is applicable include section 246, discharging a
firearm at certain occupied structures, and section 12034, subdivisions (c) and (d),
discharging a firearm from a vehicle. (§ 12022.53, subd. (d).) These offenses
necessarily involve the use of a firearm and section 12022.53 expressly provides
for a firearm use enhancement. By including these offenses and providing that its
enhancements apply “[n]otwithstanding any other provision of law,” the
Legislature made clear its intention that section 654 not apply.
Likewise, section 12022.53 contemplates the imposition of enhancements
to certain other qualifying crimes when those offenses involve the use of a firearm.
For example, in People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins), the
Court of Appeal upheld imposition of a section 12022.53, subdivision (d)
enhancement when the defendant committed a murder using a gun. Hutchins
argued that the trial court punished him twice for firing the shots that killed the
victim by imposing a 15-years-to-life term for second degree murder plus a 25-
years-to-life enhancement under subdivision (d). The Court of Appeal rejected the
argument that the sentence violated section 654. Quoting and italicizing the
phrase “[n]otwithstanding any other provision of law” of section 12022.53,
subdivision (d), the Court of Appeal held: “Clearly, in enacting this provision the
Legislature intended to mandate the imposition of substantially increased penalties
where one of a number of crimes, including homicide, was committed by the use
of a firearm. In so doing, the express language of the statute indicates the
Legislature’s intent that section 654 not apply to suspend or stay execution or
imposition of such enhanced penalties.” (Hutchins, at p. 1313.) Thus, “where
imposition of a firearms use enhancement is made mandatory notwithstanding
other sentencing laws and statutes, it is error to apply section 654 to stay
imposition of such an enhancement.” (Id. at p. 1314; accord, People v. Sanders
(2003) 111 Cal.App.4th 1371, 1375.)
Hutchins, supra, 90 Cal.App.4th 1308, and related
cases are inapplicable because they hold only that section 654 does not preclude
imposition of punishment for the substantive offense and the section 12022.53
enhancement when both are based on the same conduct. He asserts that the
Hutchins analysis does not apply when multiple enhancements are based upon a
single injury. However, the Legislature’s mandate that section 12022.53
enhancements shall be imposed “[n]otwithstanding any other provision of law”
leaves no room for such parsing. Nothing in the statute suggests the Legislature
intended to override section 654 as to some applications of section 12022.53, but
not others.
Finally, defendant argues that the Legislature could not have intended a
“draconian” scheme whereby one injury could result in as many 25-years-to-life
enhancements as there were qualifying offenses. He relies on the Court of
Appeal’s reasoning that the punishment should be commensurate with defendant’s
conduct rather than “the fact the aggravated kidnappings were technically ongoing
at the time he discharged the gun.” However, as we have discussed, the
applicability of section 12022.53 enhancements necessarily depends on what is
“technically ongoing at the time” a firearm is used. The Legislature premised
section 12022.53 enhancements on a defendant’s firearm use during underlying
crimes. The statute “prescribes substantial sentence enhancements for using a
firearm in the commission of certain listed felonies.” (Oates, supra, 32 Cal.4th at
p. 1052, italics added.) Although subdivision (d) incorporates an injury element, it
still “clearly serves” legislative goals in deterring the use of firearms in crimes.
(See Oates, at pp. 1057-1058.) Defendant fired a gun and caused great bodily
injury while he was committing three crimes. The sentence imposed by the trial
court is required by the statutory language and in keeping with the legislative

The judgment of the Court of Appeal is reversed. The matter is remanded
to that court with instructions to reinstate the 25-years-to-life terms imposed for
the section 12022.53, subdivision (d) enhancements for the kidnap for robbery and
kidnap for carjacking of Brian Jones.


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

Name of Opinion People v. Palacios

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 126 Cal.App.4th 428
Rehearing Granted


Opinion No.

Date Filed: July 12, 2007


County: San Diego
Judge: Marguerite L. Wagner


Attorneys for Appellant:

Ward Stafford Clay for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P.
Gonzalez, Steven T. Oetting, Ronald A. Jakob and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.

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

Ward Stafford Clay
110 West C Street, Suite 2300
San Diego, CA 92101
(619) 234-1353

Christopher P. Beesley
Deputy Attorneys General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2332

Opinion Information
Date:Docket Number:
Thu, 07/12/2007S132144

1The People (Plaintiff and Respondent)
Represented by Ronald A. Jakob
Office of the Attorney General
110 West "A" Street, Suite 1100
San Diego, CA

2The People (Plaintiff and Respondent)
Represented by Christopher Pratt Beesley
Office of the Attorney General
110 West "A" Street, Suite 1100
San Diego, CA

3Palacios, Aaron Marcel (Defendant and Appellant)
Represented by Ward Stafford Clay
Attorney at Law
110 West "C" Street, Suite 2300
San Diego, CA

Jul 12 2007Opinion: Reversed

Mar 10 2005Petition for review filed
  by counsel for resp. (People)
Mar 11 20052nd petition for review filed
  by counsel for aplt. ( Aaron Marcel Palacios)
Mar 14 2005Received Court of Appeal record
  3 volumes
Apr 20 2005Time extended to grant or deny review
  To June 9, 2005.
May 11 2005Petition for review granted (criminal case)
  Petitions for review GRANTED. Respondent is designated petitioner in this court for purposes of briefing and argument. (Cal. Rules of Court, rule 29.1(a)(6).) Briefing on the issue raised in respondent's petition for review is to proceed at this time. (Cal. Rules of Court, rule 29.1.) Briefing or other further action on the issues raised in appellant's petition for review is deferred pending consideration and disposition of a related issue in People v. Black, S126182 and People v. Towne, S125677 (see Cal. Rules of Court, rule 28.2(d)(2)), or pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 7 2005Request for extension of time filed
  by counsel for respondent The People, requesting a 30-day extension to and including July 11, 2005, to file respondent's opening brief on the merits.
Jun 13 2005Extension of time granted
  To July 11, 2005 to file respondent's opening brief on the merits. No further extensions will be granted.
Jul 7 2005Opening brief on the merits filed
  by Respondent People
Aug 8 2005Request for extension of time filed
  to file answer brief on the merits to September 3, 2005.
Aug 9 2005Extension of time granted
  to and including September 3, 2005. No further extensions will be contemplated.
Sep 6 2005Answer brief on the merits filed
  Appellant (Palacios) by counsel.
Sep 23 2005Reply brief filed (case fully briefed)
  Respondent (The People) by counsel.
Apr 3 2007Case ordered on calendar
  to be argued Wednesday, May 2, 2007, at 1:30 p.m., in San Francisco
May 2 2007Cause argued and submitted
Jul 12 2007Opinion filed: Judgment reversed
  The judgment of the Court of Appeal is reversed. The matter is remanded to that court with instructions. -----Opinion by: Corrigan, J. -----Joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, J.J.
Aug 17 2007Remittitur issued (criminal case)
Aug 22 2007Returned record
  to CA4 Div1 - 3 doghouses - overnight requested

Jul 7 2005Opening brief on the merits filed
Sep 6 2005Answer brief on the merits filed
Sep 23 2005Reply 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