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Name: People v. Gonzales et al.
Case #: B207856
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 01/12/2010

In a gang-related offense involving the use or discharge of a firearm, the principal who does not use or discharge a firearm is not subject to imposition of an enhancement for participation in a criminal street gang when an enhancement is imposed for the weapon. Ortiz was convicted of first degree attempted murder and assault, with the jury finding that the crime was committed for the benefit of a gang and that a principal personally used a handgun causing great bodily injury. (Pen. Code, secs. 186.22, subd. (b)(1) and 12022.53, subds. (b)(c)(d) and (e)(1).) Gonzales was convicted of attempted non premeditated murder, assault and the enhancements. There was no finding that either defendant personally used a firearm. The court sentenced Ortiz to life with the possibility of parole, a consecutive term of 25 years to life for the gun enhancement, and a minimum parole eligibility of fifteen years pursuant to section 186.22, subdivision (b)(1). The appellate court found that the trial court erred in applying both the term for the gun enhancement and the minimum parole eligibility period under the gang statute when it imposed sentence for Ortiz. The court noted that the Legislature intended a broad interpretation of gang enhancements to encompass additions to a base term [enhancements] and alternate penalty provisions (People v. Brookfied (2009) 47 Cal.4th 583). Here, the court found the minimum parole eligibility period to be a penalty provision, as defined by Brookfield. Penal Code section 12022.53, subdivision (e)(2) states that an enhancement for participation in a criminal street gang shall not be imposed in addition to an enhancement for the gun unless the person personally used the gun. Because there was no finding that Ortiz personally used the firearm, under the holding of Brookfield calling for a broad interpretation of gang enhancements, he fell within the exclusion of section 12022.53, subdivision (e)(1)(2) and could not be held liable for both the enhancement and the parole eligibility penalty provision.