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Name: People v. Bautista
Case #: F043279
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/05/2005
Subsequent History: 4/13/05: revw den.

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.