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Name: People v. David Vega et al.
Case #: B237354
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/07/2013

If a felony is violent as a result of both a firearm use allegation and a great bodily injury allegation, Penal Code section 1170.1, subdivision (f) does not prohibit imposition of sentence for both a firearm use and a gang enhancement. By jury trial, David and Jose were each convicted of two counts of attempted voluntary manslaughter and shooting into an occupied vehicle. The jury found that the crimes were committed for the benefit of a criminal street gang. David was also found to have been a principal when armed, and to have personally used a firearm and inflicted great bodily injury. As to David, the sentence for attempted voluntary manslaughter was enhanced for both the criminal gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) and the gun use enhancement (Pen. Code, § 12022.5). Held: Sentence remanded. The court rejected David’s argument that under section 1170.1, subdivision (f), he could only be sentenced to the greater of the two enhancements because both were based on his firearm use. The gang enhancement pursuant to section 186.22, subdivision (b)(1)(C) applies if the person is convicted of a violent felony. Here, the attempted voluntary manslaughter could be found to be a violent felony as a result of the great bodily injury finding or the firearm use finding. Given the great bodily injury finding, nothing in section 1170.1, subdivision (f) prevented imposition of both enhancements. The court distinguished People v. Rodriguez (2009) 47 Cal.4th 501, 508–509. Separately, the Court of Appeal concluded that the trial court erred by staying the penalty for David’s great bodily injury enhancement and Jose’s gang enhancement. Absent specified legal circumstances, a trial court has no generalized authority to stay enhancements, although it can strike the sentences under Penal Code section 1385, subdivision (a) or section 186.22, subdivision (g), if the reasons are set forth in the clerk’s minutes.