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Name: People v. Le
Case #: D057392
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/27/2012
Subsequent History: Review granted 7/25/12: S202921

The trial court did not err when it found that it lacked discretion under the facts of the case to impose both a personal gun use enhancement under Penal Code section 12022.5, subdivision (a), and a gang enhancement under Penal Code section 186.22, subdivision (b)(1)(B) or (b)(1)(C). Appellant was convicted of assault with a semi-automatic firearm. The jury found true allegations that the crime was committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)) and that appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)). The trial court stayed the sentence for the firearm use enhancement and imposed a 10-year “violent felony” term for the gang enhancement based on People v. Rodriguez (2009) 47 Cal.4th 501. In a cross-appeal, the Attorney General argued that the trial court had discretion to treat the Penal Code section 186.22, subdivision (b)(1), gang enhancement as a “serious felony” (Pen. Code, § 186.22, subd. (b)(1)(B)) as opposed to a “violent felony” (Pen. Code, § 186.22, subd. (b)(1)(C)). According to the Attorney General, if the trial court had properly exercised its discretion, the two enhancements would not have conflicted and would not have been subject to the Rodriguez decision. The Court of Appeal concluded that it would not have made a difference if the trial court treated the gang enhancement as a “serious felony” instead of a “violent felony” for purposes of section 186.22, subdivision (b)(1). Under either scenario the gang enhancement involved appellant’s use of a firearm, which made Rodriguez applicable. The trial court appropriately stayed the firearm enhancement.