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Name: People v. Martinez
Case #: F045722
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/01/2005

Appellant was convicted of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and a finding that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to 18 years in prison, including an 8-year term for the assault conviction (the 4-year upper term doubled), plus consecutive 5-year enhancements under sections 667(a) and 186.22, subdivision (b)(1)(B) (“§ 186.22(b)(1)(B)”). On appeal, appellant argued that the trial court erred in imposing both a 5-year enhancement under section 667(a) and a 5-year enhancement under section 186.22(b)(1)(B), because this was an improper dual use of the jury’s finding that appellant’s assault was committed for the benefit of a gang. Citing People v. Briceno (2004) 34 Cal.4th 451 and People v. Bautista (2005) 125 Cal.App.4th 646, the Court of Appeal agreed and remanded the matter with directions that appellant be resentenced under section 186.22(b)(1)(A) rather than section 186.22(b)(1)(B). In the published part of the opinion, the Court of Appeal held that imposing enhancements under both sections 667(a) and 186.22(b)(1)(A) based on the gang finding was not an improper dual use of that finding in violation of Penal Code section 654. Further, since Briceno held that any felony to which a gang allegation is found true under Penal Code section 186.22 is a serious felony under Penal Code section 1192.7, subdivision (c), and since the jury found that the instant aggravated assault felony was committed for the benefit of a gang within the meaning of section 186.22, subdivision (b), it was not error for the trial court (rather than the jury) to find that appellant’s current offense was “serious” for purposes of Penal Code section 667(a).