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Name: People v. Le
Case #: S202921
Court: CA Supreme Court
District CalSup
Opinion Date: 06/15/2015
Summary

Trial court is precluded from imposing both a firearm enhancement (Pen. Code, § 12022.5, subd. (a)(1)) and a serious felony gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)) when the crime qualifies as a serious felony solely because it involved firearm use. Le and Yang committed a drive-by shooting on a group they believed were rival gang members. Among other offenses, Yang was convicted of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). As to that offense, a gang enhancement (§ 186.22, subd. (b)(1)) and personal use of a firearm enhancement (§ 12022.5, subd. (a)(1)) were found true. At sentencing, the trial court imposed the 10-year firearm use enhancement, but stayed the gang enhancement pursuant to People v. Rodriquez (2009) 47 Cal.4th 501, which held that Penal Code section 1170.1, subdivision (f) prohibits imposition of both a personal use of a firearm enhancement and a violent felony gang enhancement (§ 186.22, subd. (b)(1)(C)) when the only reason the felony is violent is because it involved a firearm. The People appealed, arguing that the trial court should also have imposed a 5-year serious felony gang enhancement (§ 186.22, subd. (b)(1)(B)). The Court of Appeal affirmed. The Supreme Court granted review. Held: Affirmed. After analyzing the relevant statutes (Pen. Code, §§ 186.22, subd. (b), 1192.7 [listing serious felonies], 1170.1, subd. (f)) the court concluded that a section 186.22, subdivision (b)(1)(B) gang enhancement for a crime that is a serious felony solely because it involved a firearm is an enhancement imposed for being armed with or using a firearm. Because Yang’s assault crime qualified as a serious felony solely because it involved a firearm (see Pen. Code, § 1192.7, subds. (c)(8), (c)(23), (c)(31)), section 1170.1, subdivision (f) prohibited the underlying assault from being enhanced for use of a firearm both under section 12022.5, subdivision (a) and section 186.22, subdivision (b)(1)(B). Instead, only the greater of the two enhancements could be imposed.