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Name: People v. Jones
Case #: S148463
Court: CA Supreme Court
District CalSup
Opinion Date: 08/31/2009

Enhancement for firearm use was proper for shooting into an inhabited dwelling for the furtherance of a street gang. Appellant was subject to life imprisonment because he committed a shooting into an inhabited dwelling for the benefit of a criminal street gang. (Pen. Code, secs. 246, 186.22, subd. (b)(4)). It was also found that he personally discharged a firearm (Pen. Code, sec. 12033.53, subd. (c)) and that he unlawfully possessed a firearm (Pen. Code, sec. 12021, subd. (c)(1)), that these offenses were in furtherance of a street gang (Pen. Code, sec. 186.22, subd. (b)(4)). Appellant was also convicted of street terrorism (Pen. Code, sec. 186.22, subd. (a)). For the shooting, appellant was sentenced to 7 years in prison for the offense plus a consecutive indeterminate life term as a sentence enhancement for the gang enhancement, plus 20 years for the gun use. The court also imposed and stayed a 10-year term for personal use of a firearm, and imposed and stayed a three-year term for the gang offense, and imposed a concurrent six-year sentence for unlawfully possessing a firearm. The appellate court vacated the sentence, holding that the trial court erred when it imposed a seven-year prison term and then enhanced it with a life term, finding that what the court should have done was impose the life term, not as a sentence enhancement but as an alternate penalty. It also held that the ten-year firearm use enhancement (Pen. Code, sec. 12022.5) could not be imposed where an enhancement for a firearm use is imposed under section 12022.53, subdivision (f). The appellate court also rejected appellant’s contention that the trial court erred in imposing a 20-year enhancement for personally discharging a firearm under section 12022.53, subdivision (c). The California Supreme Court affirmed the Court of Appeal’s opinion. Under section 186.22, subdivision (b)(4), a defendant convicted of shooting into an inhabited dwelling for the benefit of a street gang is subject to an indeterminate life term. Section 12022.53, subdivision (c) imposes a 20-year enhancement for those subject to a life term who personally use a firearm. This was not bootstrapping because the same conduct was not used for additional punishment. Section 12022.53, subdivision (c) applies where the defendant persoannly uses a firearm regardless of whether it is gang related. Therefore, the gang-related felony was not used twice.