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Name: People v. Harper
Case #: C032124
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/15/2000
Subsequent History: Review denied 12/13/00

The trial court erred, and the People conceded that no statute permitted the trial court to order appellant’s driver’s license suspended for five years. The appellate court struck the suspension order. Appellant challenged as unauthorized the trial court’s order that the firearm used in the offense be destroyed pursuant to Penal Code section 12022.5. Appellant claimed the prosecution failed to prove he owned the gun. The court rejecting the argument, finding that if appellant owned the gun, the statute applied, and if appellant did not own the gun, he lacked standing to challenge the order. [Editor’s note: Is standing required to challenge an unauthorized sentence? And should the prosecution’s failure of proof place appellant in the position where he has to admit a fact on which the destruction order is predicated to raise it as an unauthorized sentence?] The four-year enhancement imposed pursuant to Penal Code section 12022.5, subdivision (a), was not improper. While firearm use is an element of the offense of which appellant was convicted (assault with a semiautomatic weapon in violation of Penal Code section 245, subdivision (b)), subdivision (d) of section 12022.5 excepts from this dual use prohibition convictions for assault with a deadly weapon which is a firearm under section 245. Assault with a semiautomatic weapon is an assault with a deadly weapon which is a firearm. Moreover, by logical extension of the analysis in People v. Martinez (1987) 194 Cal.App.3d 15, which found an assault with a deadly weapon which is a firearm under section 245 includes offenses defined under subdivision (c), it necessarily also includes the offense defined in subdivision (b).