IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S159497
v.
Ct.App. 2/4 B179650
JUAN RODRIGUEZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. MA025392
A jury convicted defendant of three counts of assault with a firearm. (Pen.
Code, § 245, subd. (a)(2).)1 As to each count, the jury found to be true two
sentence enhancement allegations: that defendant personally used a firearm
(§ 12022.5, subd. (a)), and that the assault was a “violent felony” committed to
benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court
sentenced defendant to prison for a total of 22 years and eight months. That
sentence included 18 years and eight months for the two sentence enhancements.
The Court of Appeal, in a two-to-one decision, struck the additional five
years and four months resulting from defendant‟s personal firearm use, but it left
in place the additional 13 years and four months imposed for committing violent
felonies to benefit a street gang. The majority reasoned that application of both
sentence enhancement provisions in this case violated section 654‟s prohibition
1
Undesignated statutory references are to the Penal Code.
1
against multiple punishment for a single criminal act — here, that single act was
defendant‟s firearm use in each of the three assaults.
We agree with the Court of Appeal majority that the trial court erred in
imposing additional punishment for defendant‟s firearm use under both section
12022.5‟s subdivision (a) and section 186.22‟s subdivision (b)(1)(C). But unlike
the appellate court‟s decision, ours is not based on section 654. Instead, it rests on
section 1170.1, subdivision (f), which prohibits the imposition of additional
punishment under more than one enhancement provision for “using . . . a firearm
in the commission of a single offense.” That provision was violated here.
I
Defendant Juan Rodriguez is a member of Varrio Nuevo Estrada (VNE), a
criminal street gang in the Antelope Valley area of Los Angeles County. While
riding in a car with two other VNE members, defendant fired five or six shots at
three brothers (Miguel, Jose, and Oscar Rodriguez)2 as they were playing soccer in
front of their Lancaster home. No one was injured. The three victims were
members of a rival gang, the 18th Street Gang.
When arrested, defendant admitted firing the shots in retaliation for the
18th Street Gang‟s assault on a VNE member known as “Sneaky.” At trial,
defendant denied any intent to harm the three victims, saying that he fired all of
the shots “at the sky,” far over the victims‟ heads.
As noted at the outset, a jury found defendant guilty of three counts of
assault with a firearm (§ 245, subd. (a)(2)), and as to each count made findings
under two different sentencing enhancement statutes: (1) that defendant
personally used a firearm (§ 12022.5, subd. (a)); and (2) that he committed a
“violent felony” to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
2
It does not appear that the brothers are related to defendant.
2
Section 12022.5‟s subdivision (a) provides that “any person who personally
uses a firearm in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment . . . for 3, 4, or 10 years
. . . .” (Italics added.) Exempt from that additional punishment are crimes that
necessarily involve firearm use. (Ibid.) But that exemption does not apply to “any
violation of Section 245 if a firearm is used . . . .” (§ 12022.5, subd. (d).) Here,
because defendant‟s crimes of assault with a firearm (§ 245, subd. (a)(2))
necessarily involved firearm use, at first glance, that would exempt him from the
additional punishment. But because his firearm use pertained to “violation[s] of
Section 245,” defendant falls within the exception to the exemption and thus is
subject to additional punishment under section 12022.5, subdivision (a), for
personally using a firearm in the three assaults.
The other sentence enhancement statute involved is section 186.22,
subdivision (b)(1). It calls for additional punishment when a crime is committed
to benefit a criminal street gang, with increasingly harsh levels of punishment:
Subdivision (b)(1)(A) of section 186.22 provides for additional punishment of
two, three, or four years‟ imprisonment for most felonies. Under subdivision
(b)(1)(B), the additional punishment is increased to five years for “serious”
felonies, which are defined in section 1192.7‟s subdivision (c). And under section
186.22, subdivision (b)(1)(C) (the provision at issue here), the additional
punishment is increased to 10 years for “violent” felonies “as defined in
subdivision (c) of Section 667.5.” Here, each of the three counts of assault with a
firearm (§ 245, subd. (a)(2)) qualified as a “violent” felony under section 667.5,
subdivision (c), because in committing each of those offenses defendant “use[d] a
firearm which use has been charged and proved” under section 12022.5. (§ 667.5,
subd. (c)(8).)
3
The trial court sentenced defendant to a prison term of 22 years eight
months, arrived at as follows:
For defendant‟s assault on Miguel, the court imposed a three-year term for
the assault, enhanced by four years for defendant‟s personal use of a firearm, and
further enhanced by 10 years for committing a violent felony to benefit a street
gang, resulting in a sentence totaling 17 years. For the assault on Jose, the court
imposed a one-year prison term (one-third of the midterm) for the assault,
enhanced by one year and four months (one-third of the midterm) for defendant‟s
personal use of a firearm, and further enhanced by three years and four months
(one-third of the 10-year term) for committing a violent felony to benefit a street
gang, resulting in a sentence totaling five years and eight months, to be served
consecutively to the 17-year term imposed for the assault on Miguel. For the
assault on Oscar, the trial court imposed a 17-year sentence, to be served
concurrently with the aggregate sentences for the assaults on Miguel and Jose.
As mentioned earlier, the Court of Appeal majority, relying on section
654‟s prohibition against multiple punishment, struck the additional punishments
for defendant‟s personal firearm use (a total of five years and four months),
leaving in place the sentence enhancements for committing violent felonies to
benefit a street gang (a total of 13 years and four months). The dissenting justice
concluded that defendant had a different motive for personally using a firearm in
the three assaults than for committing these crimes to benefit a street gang, and
therefore it was proper to apply the two different sentence enhancement
provisions, section 12022.5‟s subdivision (a) and section 186.22‟s subdivision
(b)(1)(C).
We granted the Attorney General‟s petition for review.
4
II
Section 654, on which the Court of Appeal majority here relied, provides in
relevant part: “An 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.” (§ 654, subd. (a).)
In Neal v. State of California (1960) 55 Cal.2d 11, this court construed the
statute broadly: “ „Section 654 has been applied not only where there was but one
“act” in the ordinary sense . . . but also where a course of conduct violated more
than one statute and the problem was whether it comprised a divisible transaction
which could be punished under more than one statute within the meaning of
section 654.‟ [Citation.] [¶] Whether a course of criminal conduct is divisible
and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.” (Id. at p. 19, italics added.)
With respect to punishment imposed under statutes that define a criminal
offense, it is well settled that “[s]ection 654 bars multiple punishments for separate
offenses arising out of a single occurrence where all of the offenses were incident
to one objective.” (People v. Lewis (2008) 43 Cal.4th 415, 519.) But this court
has never held that section 654 applies to sentence enhancements. We have
touched on that issue in three cases: People v. Palacios (2007) 41 Cal.4th 720,
People v. Oates (2004) 32 Cal.4th 1048, and People v. Coronado (1995) 12
Cal.4th 145. In Coronado, we observed that “there are at least two types of
sentence enhancements: (1) those which go to the nature of the offender; and
(2) those which go to the nature of the offense.” (Coronado, supra, at p. 156.)
We then concluded that section 654‟s prohibition against multiple punishment for
5
a single “act or omission” does not apply to enhancements based on the nature of
the offender. (Coronado, supra, at p. 158.)
In this case, the Court of Appeal majority held that when the same
circumstance — here, firearm use — calls for additional punishment under two
different sentence enhancement provisions based on the nature of the offense,
section 654 precludes imposition of both enhancements. Defendant makes the
same argument here. We need not, however, decide whether section 654 applies
to sentence enhancements that are based on the nature of the offense, because of
our conclusion that the additional punishments imposed under the two
enhancement provisions in this case violated subdivision (f) of section 1170.1.
We now turn to that statute.
III
Section 1170.1 is part of California‟s determinate sentencing law, which
“seeks to achieve greater uniformity in sentencing by providing a limited range of
sentencing options for each offense.” (People v. Black (2005) 35 Cal.4th 1238,
1246, judg. vacated and cause remanded on other grounds in light of Cunningham
v. California (2007) 549 U.S. 270.)
Section 1170.1‟s subdivision (a) describes sentencing for more than one
crime: “[T]he aggregate term of imprisonment . . . shall be the sum of the
principal term [for the primary offense], the subordinate term [for additional
offenses], and any additional term imposed for applicable enhancements.”
Subdivision (f) pertains to sentence enhancements for, as relevant here, firearm
use. It states: “When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the commission of a
single offense, only the greatest of those enhancements shall be imposed for that
offense. This subdivision shall not limit the imposition of any other enhancements
6
applicable to that offense, including an enhancement for the infliction of great
bodily injury.” (§ 1170.1, subd. (f), italics added.)
At issue here are the additional punishments that the trial court imposed,
with respect to defendant‟s assaults on victims Miguel and Jose, under two
different sentence enhancement provisions: section 12022.5‟s subdivision (a), and
section 186.22‟s subdivision (b)(1)(C). These additional punishments comprised a
total of 18 years and eight months — defendant‟s total prison sentence was 22
years and eight months. (See p. 4, ante.)
There is no question that the additional punishments imposed under section
12022.5‟s subdivision (a) for “personally us[ing] a firearm in the commission of a
felony,” fall squarely within the limiting language of section 1170.1‟s subdivision
(f). This is why: The additional punishments totaling five years and four months
imposed under section 12022.5‟s subdivision (a) for defendant‟s personal use of a
firearm in each of the three assaults were, in the words of section 1170.1‟s
subdivision (f), punishments “for . . . using . . . a firearm in the commission of a
single offense.” The additional punishments totaling 13 years and four months
under section 186.22‟s subdivision (b)(1)(C), the criminal street gang provision,
were likewise based on defendant‟s firearm use. Because two different sentence
enhancements were imposed for defendant‟s firearm use in each crime, section
1170.1‟s subdivision (f) requires that “only the greatest of those enhancements” be
imposed.
The Attorney General contends that section 186.22‟s subdivision (b)(1)(C)
is not subject to the limiting language of section 1170.1‟s subdivision (f) because
the former pertains to additional punishment that is imposed not for a defendant‟s
firearm use but for committing a felony to benefit a street gang. Thus, according
to the Attorney General, defendant was not punished under two different sentence
7
enhancement provisions for using a firearm in a single offense. We disagree. Our
reasoning follows.
As mentioned earlier (see p. 3, ante), the standard additional punishment
for committing a felony to benefit a criminal street gang is two, three, or four
years‟ imprisonment. (§ 186.22, subd. (b)(1)(A).) But when the crime is a
“violent felony, as defined in subdivision (c) of Section 667.5,” section 186.22‟s
subdivision (b)(1)(C) calls for additional punishment of 10 years. Here, defendant
became eligible for this 10-year punishment only because he “use[d] a firearm
which use [was] charged and proved as provided in . . . Section 12022.5.”
(§ 667.5, subd. (c)(8).) Thus, defendant‟s firearm use resulted in additional
punishment not only under section 12022.5‟s subdivision (a) (providing for
additional punishment for personal use of a firearm) but also under section
186.22‟s subdivision (b)(1)(C), for committing a violent felony as defined in
section 667.5, subdivision (c)(8) (by personal use of firearm) to benefit a criminal
street gang. Because the firearm use was punished under two different sentence
enhancement provisions, each pertaining to firearm use, section 1070.1‟s
subdivision (f) requires imposition of “only the greatest of those enhancements”
with respect to each offense.
Here, the Court of Appeal, relying on section 654‟s prohibition against
multiple punishment for the same act (here, the firearm use), struck the trial
court‟s imposition of additional punishment for defendant‟s personal use of a
firearm under section 12022.5 (a total of five years and four months for
defendant‟s assaults on Miguel and Jose, plus the additional punishment of four
years‟ imprisonment for the assault on the third victim, Oscar, to be served
concurrently to the sentences imposed for the assaults on Miguel and Jose). The
proper remedy, however, was not to strike the punishment under section 12022.5
but to reverse the trial court‟s judgment and remand the matter for resentencing.
8
(See People v. Navarro (2007) 40 Cal.4th 668, 681.) Remand will give the trial
court an opportunity to restructure its sentencing choices in light of our conclusion
that the sentence imposed here violated section 1170.1‟s subdivision (f).
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court with directions to reverse the trial court‟s judgment and to
remand the matter to that court for resentencing that does not violate section
1170.1‟s subdivision (f).
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rodriguez __________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 157 Cal.App.4th 14
Rehearing Granted
__________________________________________________________________________________
Opinion No. S159497
Date Filed: August 20, 2009
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: David Mintz
__________________________________________________________________________________
Attorneys for Appellant:
Matthew Alger, under appointment by the Supreme Court, and Murray A. Rosenberg, under appointment
by the Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Scott A. Taryle, Kristofer Jorstad, Jason Tran and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent
Counsel who argued in Supreme Court (not intended for publication with opinion):
Matthew Alger
290 Shaw Avenue, Suite A
Clovis, CA 93612
(559) 324-0310
Allison H. Chung
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2058
Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. This case presents the following issues: (1) Does Penal Code section 654 apply to sentence enhancements that derive from the nature of the offense? (2) Did the trial court err in this case by imposing enhancements for personal use of a firearm (Pen. Code, section 12022.5, subs. (a)) and committing a crime for the benefit of a criminal street gang (Pen. Code, section 186.22, subd. (b))?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 08/20/2009 | 47 Cal. 4th 501, 213 P.3d 647, 98 Cal. Rptr. 3d 108 | S159497 | Review - Criminal Appeal | opinion issued | PEOPLE v. MOORE (S161216) |
| 1 | The People (Plaintiff and Respondent) Represented by Allison Hewon Chung Office of the Attorney General 300 S. Spring Street, Suite 1702 Los Angeles, CA |
| 2 | Rodriguez, Juan (Defendant and Appellant) Kern Valley State Prison P.O. Box 5103 Delano, CA 93216 Represented by California Appellate Project - L.A. 520 S. Grand Avenue, Suite 400 520 S. Grand Avenue, Suite 400 Los Angeles, CA |
| 3 | Rodriguez, Juan (Defendant and Appellant) Kern Valley State Prison P.O. Box 5103 Delano, CA 93216 Represented by Murray A. Rosenberg Attorney at Law 12400 Ventura Boulevard, PMB 229 Studio City, CA |
| 4 | Rodriguez, Juan (Defendant and Appellant) Kern Valley State Prison P.O. Box 5103 Delano, CA 93216 Represented by Matthew D. Alger Attorney at Law 290 Shaw Avenue, Suite A Clovis, CA |
| Opinion Authors | |
| Opinion | Justice Joyce L. Kennard |
| Disposition | |
| Aug 20 2009 | Opinion: Reversed |
| Dockets | |
| Dec 31 2007 | Record requested |
| Dec 31 2007 | Petition for review filed The People, resp. Allison Chung,/DAG |
| Feb 21 2008 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including March 28, 2008, or the date upon which review is either granted or denied. |
| Feb 21 2008 | Received Court of Appeal record |
| Mar 12 2008 | Petition for review granted (criminal case) Moreno, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ. |
| Apr 2 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Matthew Alger is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Apr 7 2008 | Request for extension of time filed respondent's to file opening brief/merits to May 11, 2008. respondent |
| Apr 10 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including May 11, 2008. |
| May 5 2008 | Request for extension of time filed to file opening brief/merits to 6-10-08 Respondent People |
| May 8 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including June 10, 2008. |
| Jun 10 2008 | Opening brief on the merits filed Respondent People ~Deputy Attorney General Allison H. Chung |
| Jul 3 2008 | Request for extension of time filed Matthew Alger counsel for appellant requesting to August 9 to file answer brief on the merits (to court for permission) |
| Jul 7 2008 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 11, 2008. |
| Jul 28 2008 | Answer brief on the merits filed Juan Rodriguez, Defendant and Appellant Matthew Alger, counsel |
| Aug 11 2008 | Request for extension of time filed to file reply brief/merits to 9-16-08 Respondent People ~Deputy Attorney General Allison H. Chung |
| Aug 13 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including September 16, 2008. |
| Sep 10 2008 | Compensation awarded counsel Atty Alger |
| Sep 16 2008 | Reply brief filed (case fully briefed) Respondent People ~Deputy Attorney General Allison H. Chung |
| Apr 22 2009 | Case ordered on calendar to be argued Tuesday, June 2, 2009, at 2:00 p.m., in Los Angeles |
| May 13 2009 | Supplemental briefing ordered To assist the court in resolving the issues in this case, the court requests that each party serve and file, on or before May 22, 2009, in the San Francisco office of the Clerk, a supplemental letter brief, addressing these questions: (1) Is the reference to Penal Code section 654 in Penal Code section 1170.1, subdivision (a), without further mention of section 654 in any other of section 1170.1's subdivisions, indicative of legislative intent as to section 654's applicability to sentence enhancements? (2) Penal Code section 1170.1, subdivision (f), provides that "[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements" can be imposed. Does subdivision (f) preclude the imposition of added prison terms under both of the enhancement provisions at issue in this case, Penal Code sections 12022.5, subdivision (a), and 186.22, subdivision (b)(1)(C)? On or before May 28, 2009, the parties may serve and file, in the San Francisco office of the Clerk, simultaneous supplemental briefs in reply. |
| May 21 2009 | Supplemental brief filed |
| May 22 2009 | Supplemental brief filed |
| May 28 2009 | Filed: Appellant's Reply to Supplemental Letter Brief. by Matthew Alger, counsel for appellant Juan Rodriguez |
| May 28 2009 | Filed: Supplemental Reply Letter Brief by DAG Allison H. Chung, counsel for respondent People. |
| Jun 2 2009 | Cause argued and submitted |
| Aug 19 2009 | Notice of forthcoming opinion posted To be filed Thursday, August 20, 2009 @ 10 a.m. |
| Aug 20 2009 | Opinion filed: Judgment reversed Majority Opinion by: Kennard, J. -----joined by: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to reverse the trial court's judgment and to remand the matter to that court for resentencing that does not violate section 1170.1's subdivision (f). |
| Briefs | |
| Jun 10 2008 | Opening brief on the merits filed Respondent People ~Deputy Attorney General Allison H. Chung |
| Jul 28 2008 | Answer brief on the merits filed Juan Rodriguez, Defendant and Appellant Matthew Alger, counsel |
| Sep 16 2008 | Reply brief filed (case fully briefed) Respondent People ~Deputy Attorney General Allison H. Chung |
| May 21, 2011 Annotated by maggie filler | FACTS: A jury convicted Mr. Rodriguez of three counts of assault with a firearm (Cal. Penal § 245(a)(2) (West 2011)). The jury found true two sentencing allegations: (1) Mr. Rodriguez personally used a firearm in commission of the crime, an enhancement under California Penal Code section 12022.5(a), and (2) the crime was a violent felony committed to benefit a street gang, an enhancement under section 186.22(b)(1)(C). The trial judge imposed a prison sentence of twenty-two years and eight months. This sentence included eighteen years, eight months of enhancements. On appeal, Mr. Rodriguez argued that these enhancements unlawfully imposed multiple punishments for the same act. The Court of Appeals agreed, holding that the enhancements violated section 654’s prohibition against multiple punishments for the same criminal act. The Court of Appeals affirmed and modified Mr. Rodriguez’s sentence – striking the enhancement for personal use of a firearm during the commission of a crime. The Attorney General petitioned the California Supreme Court for review. PROCEDURAL POSTURE: ISSUE: HELD: ANALYSIS: Because Mr. Rodriguez’s sentence was improper under section 1170.1(f), the Court did not reach the question of whether section 654 bars multiple sentence enhancements that go to the nature of the offense. The Court did reaffirm its stance that section 654 poses no bar to multiple sentence enhancements deriving from the nature of the offender. (See People v. Coronado (1995) 12 Cal.4th 145.) The Court also maintained that it had never held section 654 applicable to sentence enhancements. KEY RELATED CASES: Neal v. State of California (1960) 55 Cal.2d 11. People v. Lewis (2008) 43 Cal.4th 415. People v Coronado (1995) 12 Cal.4th 145. People v. Navarro (2007) 40 Cal.4th 668. Tags: California Penal Code, enhancement, sentence, firearm, multiple punishments Annotated by: Maggie Ellen Filler |
