Where a trial court is precluded from imposing both a serious/violent felony gang enhancement and a gun use enhancement, it may not alternatively impose the nonviolent/nonserious felony gang enhancement. Francis was found guilty of shooting from a motor vehicle (former Pen. Code, § 12034, subd. (c)) and assault with a semiautomatic weapon (Pen. Code, § 245, subd. (b)). Serious felony gang (Pen. Code § 186.22, subd. (b)(1)(B)) and gun use enhancements (Pen. Code, § 12022.5, subd. (a)) were found true. At sentencing the trial court found it could not impose the serious felony gang enhancement in addition to the gun use enhancement because imposition of both enhancements was prohibited. (See People v. Rodriquez (2009) 47 Cal.4th 501; People v. Le (2015) 61 Cal.4th 416; Pen. Code, § 1170.1, subd. (f) [prohibiting imposition of both a gun use enhancement and the serious or violent felony gang enhancement where the current offense qualifies as a serious or violent felony solely because the defendant personally used a gun in the commission of the offense.) Instead, the court imposed the nonserious, nonviolent felony gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(A)). Francis appealed. Held: Gang enhancement modified and stayed. The term of a gang enhancement depends on whether the current felony is serious or violent. (See Pen. Code, § 186.22, subd. (b).) Here, Francis was convicted of a serious felony. After analyzing section 186.22, subdivision (b), the Court of Appeal determined that the statute did not authorize the trial court to impose the gang enhancement under subdivision (b)(1)(A) because this subdivision applies only to nonserious and nonviolent felonies. Because the trial court had imposed the maximum possible sentence and there were no sentencing choices for the trial court to restructure, the appellate court modified the judgment to reflect a serious felony gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)) and stayed the enhancement.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B270470.PDF