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Name: People v. Gonzalez
Case #: B208413
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 11/04/2009
Summary

Where the great bodily injury enhancement (Pen. Code, sec. 12022.7, subd. (a)) also turns the underlying felony into a violent felony for purposes of a gang enhancement, sentence can be imposed only for the greater of the two. Appellant was convicted by jury trial of assault likely to produce great bodily injury (Pen. Code, sec. 245, subd. (a)(1)). As to the assault, the jury also returned true findings on enhancements pursuant to sections 12022.7, subdivision (a) and 186.22, subdivision (b)(1)(C). Pursuant to Penal Code section 667.5, subdivision (c), the assault became a violent felony as a result of the great bodily injury enhancement, so as to qualify appellant for the gang enhancement. Under Penal Code section 1170.1, subdivision (g), where two enhancements for great bodily injury on the same victim in the commission of the same offense, are found true, only the greatest of the two shall be imposed. (People v. Rodriguez (2009) 47 Cal.4th 501.) Here the trial court erred by imposing consecutive sentences for both enhancements, three years for the section 12022.7, subdivision (a) enhancement and ten years for the section 186.22, subdivision (b)(1)(C) enhancement. The appellate court ordered reversal of the sentence and remanded the matter to the trial court for resentencing.