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Name: People v. Valencia
Case #: B134135
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/07/2000
Subsequent History: Review denied 11/1/00

A Penal Code section 12022.53 enhancement for personally discharging a firearm which caused death may be added to a second degree murder sentence even though the homicide occurred in 1998. Just because Penal Code section 12022.7 does not apply to murder does not mean 12022.53 does not apply to murder. First, section 12022.53, subdivision (a)(1), explicitly applies to the crime of murder. Second, even though section 12022.53, subdivision (d), relies on section 12022.7, to define the scope of the new firearm use enhancement, and section 12022.7 does not apply to murder, section 12022.53 does not explicitly refer to 12022.7, subdivision (e), and it is through that section that appellant infers that 12022.53 does not apply to murder. This would create an ambiguity if it were not for the explicit language contained in 12022.53, subdivision (a)(1). However, this ambiguity is resolved by reference to legislative committee reports which indicate that section 12022.53 firearm use enhancements apply to murder charges. The construction advocated by appellant violates several rules of statutory construction. First, it does not construe the statute as a whole. Second, this interpretation renders the explicit language which makes the enhancement apply to murder a ity. Finally, the amendment to subdivision (d) of section 12022.53, which explicitly added the language “or death” was intended to be declaratory of existing law. While it is the court’s duty to construe a statute, this statement of intent was part of the uncodified provision of the enactment, and as such, was entitled to “due consideration.” It is consistent with the language and the legislative history leading up to the 1997 adoption of 12022.53, subdivision (d), and the 1998 amendment was adopted by the same Legislature who originally enacted section 12022.53, subdivision (d).