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Name: People v. Rodriguez
Case #: B179600
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/21/2007
Subsequent History: Rev. granted 3/12/08: S159497

The single act of a firearm use cannot be used as an enhancement and to augment a gang enhancement as well. Appellant fired upon three victims with a firearm during a single incident. He was convicted of three counts of assault with a firearm, with a personal use allegation, and a street gang enhancement. The trial court imposed a four-year firearm enhancement as to each count and a 10-year gang enhancement imposed under section 186.22, subdivision (b)(1)(c) which can be imposed where the underlying offense is a violent felony. Violent felony is defined as any felony in which the defendant uses a firearm. On appeal, appellant contended that the imposition of the two enhancements based upon the same firearm use violated section 654. The appellate court agreed and modified the judgment. Where the sole basis for the augmented gang enhancement was the precise act that warranted the enhancement of the assault conviction, the 654 prohibition applies. The act that rendered appellant eligible for the gang enhancement necessarily included the act used to enhance his sentence for assault.