Appellant contended that the trial court erred in failing to submit to the jury the question whether his current conviction for negligent discharge of a firearm was a serious felony for purposes of two enhancements attached to that count, both of which required the current offense to be a serious felony. (A gang enhancement under Penal Code section 186.22, and a prior serious felony enhancement under section 667.) There were two alternative ways in which the offense could be a serious felony, either by a finding that the offense included personal use of a firearm under section 1192.7, or by finding that it was a felony offense which could also constitute a felony violation of section 186.22. The jury found that appellant did commit count 1 under the circumstances specified in section 186.22. Therefore, the 667 enhancement was tantamount to a finding that the offense was a serious felony. However, the imposition of a second enhancement pursuant to section 186.22 was precisely the bootstrapping prohibited by the Supreme Court in Briceno, and that enhancement was therefore reversed and the case remanded for resentencing.
Case Summaries