The exception to the mandatory imposition of the enhancement under section 12022.53 which dictates that an enhancement providing for a greater punishment be imposed instead of the 12022.53 enhancement, does not encompass a combination of enhancements whose total is greater than the use enhancement. Here, the appellate court was called upon to interpret various provisions of the gang and arming and firearm-use enhancements and their interplay. A jury convicted appellant of ten counts of robbery and one count of assault, and also returned true findings on accompanying gang enhancements (Pen. Code, sec. 186.22, subd (b)(1)), and arming enhancements (Pen. Code, sec. 12022, subd. (a)(1)), as to each count. As to counts 1 through 10, the jury also returned true findings on firearm-use enhancements (Pen. Code, sec. 12022.53, subds (b) & (e)(1)). Rather than imposing the mandatory gun enhancement on count one, the court struck it and instead imposed the ten-year gang enhancement plus one year for the arming enhancement. Utilizing the rules of statutory construction to interpret section 12022.53, the court determined this to be error, finding that the language, “the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment,” does not contemplate a combination of enhancements. Thus, combining the penalty for the arming and the gang enhancement to create a greater term than the use enhancement was error, and imposition of the use enhancement was mandated. Per section 12022.53, subdivision (e)(2), whether the court opts to impose and stay the gang enhancement depends on whether defendant personally used a firearm in the commission of the felony.
The court also found that Penal Code section 245, subdivision (a)(2) does not permit imposition of the Penal Code section 12022, subdivision (a)(1) arming enhancement because the arming is an element of the assault.
Further, because section 245, subdivision (a)(2) is a serious felony rather than a violent felony, Penal Code section 186.22, subdivision (b)(1)(B) authorizes only a five-year enhancement.