Opinion
D049692
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL J. GUILLEN, Defendant and Appellant.
Not to be Published
A jury convicted Nathaniel J. Guillen of second degree murder (Pen. Code, 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664). The jury also found that he personally discharged a firearm causing death or great bodily injury (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d), 12022.7, subd. (a)) and committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court granted a motion for acquittal for the attempted murder of a third person. The court imposed a determinate term of five years plus an indeterminate term of 65 years to life.
All statutory references are to the Penal Code unless otherwise specified.
Guillen contends his convictions must be reversed because the trial court failed to sua sponte instruct on the right to self defense after withdrawing from a mutual combat and to disregard evidence relating to the third shooting after the court had granted his motion for acquittal. He also contends there was insufficient evidence to support his attempted murder conviction or the criminal street gang enhancement and the court erred in staying, rather than striking, some of the enhancements. We affirm the judgment.
FACTS
There were variations in the witnesses descriptions of what occurred. We provide here a brief version of the facts stated in the light most favorable to the judgment and provide additional details as necessary in the discussion of Guillens contentions.
On Friday, October 14, 2005, James Jackson, a member of the Skyline Piru criminal street gang, was at a party at the Meadowbrook apartment complex in La Mesa when Damian Gibson announced he was going to pick up his cousin, Dominic Holmes, and bring him to the party. Gibson and Holmes were both members of West Coast Crips, a rival gang. Soon after Gibson left the party, Jackson obtained a phone number for Guillen, who was also a Skyline Piru gang member.
Guillen had stopped by the Meadowbrook apartment complex earlier in the day to visit a member of the Skyline Piru gang and while visiting there he chatted with Jackson, Jordan and one of the hosts of the party. Jackson or Jordan told Guillen about the party and invited him to attend, Guillen gave his phone number to Jordan. Later during the party, Jackson appeared mad and told Jordan to call Guillen. Instead, Jordan wrote Guillens phone number on a piece of paper and gave it to Jackson.
Gibson returned to the party with Holmes, and Guillen arrived shortly thereafter. Jackson confronted Holmes in the pool area of the apartment complex, saying in a loud and angry voice, "Whats up, blood? Whats up, blood?" These statements were insults and confrontational in the gang context and were especially insulting because Holmes was not a member of a Blood gang. In response, Holmes handed his wallet and cell phone to his cousin and adopted a fighting stance. While Holmess attention was focused on Jackson, Guillen walked up behind Holmes with a closed fist as if he were going to hit Holmes on the back of the head. Before Guillen could make contact, Gibson intervened, said, "Back up, Homie" and pushed or hit Guillen. Guillen stumbled backwards.
Guillen pulled out a gun and pointed it at Holmes, who was about four feet away. Holmes, as well as Gibson and Gibsons girlfriend who were nearby, raised their hands and backed away. Holmes attempted to disarm Guillen, but Guillen fired his gun, wounding Holmes. As Guillen backed up toward the parking lot, he fired his gun at Gibson, killing him. Guillen ran to the parking lot, got in his car and drove away.
There was conflicting evidence as to whether Gibson lunged or hit Guillen before being shot.
Defense
Guillen testified in his own defense. He denied being a gang member and said he went to the apartment complex only to attend the party. When he arrived, he did not walk up behind Holmes or have a closed fist. He heard Jackson say sarcastically to Holmes, "Whats up blood." Gibson then hit Guillen without provocation, causing him to stumble. When Guillen looked up, he saw Holmes coming straight at him quickly. Believing that Holmes was going to kill him, Guillen pulled out the gun, pointed it at Holmes and yelled, "Get back, man, get back," but Holmes started laughing and tried to grab the gun. Believing that Holmes was going to take his gun and kill him, Guillen fired. Holmes fell to the ground. Guillen ran toward the parking lot with Gibson chasing after him. Gibson smashed him into a fence. Fearing for his life, Guillen shot Gibson. Guillen ran to his car and drove to Mission Bay where he threw away the gun and bullets. Two days later, he turned himself into the police.
Guillen attacked the credibility of the prosecution witnesses by pointing out variations between their trial testimony and their statements to the police. An apartment resident testified she heard someone say, "get back, man, get back." Guillens girlfriend testified, among other things, that after the incident Guillen returned home with a black eye.
DISCUSSION
I
Instructions on Mutual Combat
Guillen contends the trial court was required to sua sponte instruct on the right to self-defense after withdrawal from mutual combat. He contends there was sufficient evidence to show that although he initially agreed to participate in a fight, he made it clear after shooting Holmes that he was in good faith trying to end the fight by running away so that when Gibson slammed him into the fence, he had regained his right to self-defense.
Section 197 addresses homicide, mutual combat and self-defense: "Homicide is also justifiable when committed by any person in any of the following cases: [¶] . . . [¶] 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed . . . ." " [M]utual combat consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. . . . [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047, italics omitted.) "The mutuality triggering the doctrine inheres not in the combat but in the preexisting intent to engage in it. Old but intact case law confirms that as used in this states law of self-defense, `mutual combat means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Id. at p. 1045, italics omitted.)
CALCRIM No. 3471 instructs on the right to self-defense when there is mutual combat or the defendant is the initial aggressor. Guillen contends the court should have instructed the jury pursuant to CALCRIM No. 3471 (2006-2007) as follows: "A person who engages in mutual combat or who is the first one to use force has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; and [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight."
The court instructed the jury with a modified version of CALCRIM No. 505 on homicide justified by self-defense or the defense of another. This instruction tells the jury that if the defendant reasonably believed he was in imminent danger of being killed or suffering great bodily injury and reasonably believed the immediate use of deadly force was necessary to defend against that danger and he used no more force than was reasonably necessary, then the killing was justified by self-defense. The instruction also tells the jury: "However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit."
"A trial court must instruct on its own initiative only on those principles of law `commonly or closely and openly connected with the facts of the case." (People v. Davis (2005) 36 Cal.4th 510, 570, italics omitted.) A trial court has a sua sponte duty to instruct on a defense theory when the defendant is relying on that theory or when there is substantial evidence to support the theory and it is not inconsistent with the defense theory. (People v. Abilez (2007) 41 Cal.4th 472, 517.) In deciding whether there is substantial evidence, the court does not determine credibility of the evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.)
Here, as the Attorney General points out, Guillen did not base his defense on mutual combat but on self-defense or imperfect self-defense. At trial, Guillen told the jury that he had no intent to be involved in any physical altercation but was only defending himself when others attacked him. Only now on appeal does Guillen raise the mutual combat theory.
Imperfect self-defense involves an honest but unreasonable need for self-defense and reduces a homicide from murder to voluntary manslaughter. (People v. Rogers (2006) 39 Cal.4th 826, 883.)
Guillens argument is a hindsight attempt to parse a continuous course of action into discrete segments. There was no prior agreement among Guillen, Jackson, Holmes and Gibson to engage in a fight at the apartment complex. Instead, Guillen and Jackson initiated the fight by confronting an unsuspecting Holmes. When Gibson intervened, Guillen immediately escalated the situation by drawing a gun. When Holmes and Gibson raised their hands and backed away, clearly indicating they intended to disengage, Guillen did not lower the gun or otherwise indicate he was attempting to diffuse the situation. Instead, Guillen kept his gun pointed at Holmes and as soon as Holmes made a movement toward him, Guillen fired the gun. Even assuming Gibson slammed him into a fence as Guillen claims, this happened almost immediately after Guillen shot Holmes. Guillen was still in the pool area of the apartment complex and, at most, a few feet away from where he shot Holmes. He still had his gun out and the shots occurred in rapid succession.
Some witnesses testified that Gibson did not make any physical contact with Guillen after Holmes was shot while other witnesses testified Gibson went in Guillens direction or slammed him into the fence.
When the confrontation with Jackson and Guillen began, Holmes was standing near the front door to apartment 7639B. After Gibson pushed Guillen, Guillen was by the bushes in front of apartment 7639B. Gibson was shot a few feet from the door to apartment 7639B and near the gate to the pool area, which was across from the door to the apartment.
Two residents of the apartment complex who were standing outside, testified that when they heard the first shot, they turned their heads and saw the second shot that killed Gibson. Holmes testified the shots were "pretty close." A party attendee testified he saw Guillen fire the first shot and was grabbing a phone to call 911 when he heard a second shot. Another attendee testified he heard two shots in the apartment and decided to go downstairs because the shots "were so close together."
In other words, the conflict was continuous. There was no break in the action where Guillen clearly indicated that he was disengaging. The evidence, as presented to the jury, showed that either Guillen was attacked by Holmes and Gibson, and he was defending himself (or had an honest but unreasonable belief in the need to defend himself), or that Holmes, Gibson and others were attempting to defend themselves from Guillen who was the aggressor.
Guillens theory of mutual combat " `was not one that the evidence would strongly illuminate and place before the trial court. " (People v. Davis, supra, 36 Cal.4th 510, 570.) "To the contrary, defendants theory was `so far under the surface of the facts and theories apparently involved as to remain hidden from even the [defense] until the case reached this court on appeal. " (Ibid.) A trial court does not have a sua sponte duty on defense theories that are obscure and require the application of mental gymnastics to divine. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1328 [no sua sponte duty to instruct found when requiring "the trial court to have determined the instruction was necessary on the facts actually before it would require a prescience not previously attributed to the mortal bench"].)
II
Instructions on a Third Victim
Guillen argues the court should have sua sponte instructed the jury to disregard evidence of a third gunshot victim.
Guillen was originally charged in count three with the attempted murder of Kevan Watkins. Watkins testified he was in the apartment, walking towards the balcony when he heard two gunshots. He immediately ran downstairs. When Watkins reached the bottom of the stairs, he was shot in the back. At that time, Guillen was not behind him, but in front of him towards the parking lot.
The court granted a defense motion for acquittal on this count noting that the uncontroverted evidence showed Watkins was shot from behind as he reached the bottom of the stairs facing the group of people involved in the altercation. The court stated it would "strain[] logic" to suggest Watkins turned his back on the action immediately upon reaching the bottom of the stairs. The court concluded that to convict Guillen of shooting Watkins the jury "would . . . necessarily have to base its decision 100 percent on speculation rather than evidence." After granting the motion, the court instructed the jury: "Ladies and Gentlemen, I want to inform you that count 3, which charges the defendant with the attempted murder of Kevan Watkins no longer needs to be decided in this case. [¶] Do not speculate about or consider in any way why you no longer need to decide this particular count . . . ." In its final instructions, that court again told the jury that count 3 was no longer before it.
During closing arguments, the prosecutor argued there were three shots and Guillen fired a shot at Watkins. The prosecutor observed that Guillen was a trained expert in handguns from his time in the Marine Corps, and then argued, "Does he have any problem pegging Kevan Watkins as he comes down? No. And he does." The defense did not object but argued Watkinss uncontradicted testimony showed he was shot from behind and that it would have been impossible for Guillen to have fired that shot.
Guillen argues he was not required to request a limiting instruction because after the court dismissed the charge, the evidence was not admissible for any reason. He complains the prosecutor improperly argued the Watkins shooting showed he had an intent to kill Holmes and Gibson. Guillen asserts, "If the jury had been informed Guillen had been acquitted by the court of the attempted murder of Watkins and told not to consider that evidence in deciding the remaining charges, there is a reasonable probability one or more jurors would have had a reasonable doubt about [whether] Guillen had the malice aforethought required for murder and attempted murder."
Although Guillen casts his argument in terms of the court having a sua sponte duty to instruct the jury, his real complaint is that the prosecutor engaged in improper argument about the Watkins shooting. In other words, he is claiming the prosecutors misconduct required an instruction to the jury. Claims of prosecutorial misconduct are not preserved for appeal unless the defendant objected and requested that the jury be admonished, an objection would have been futile, or the prosecutorial misconduct was so harmful it could not have been cured by an admonition. (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585.) There is no indication an objection would have been futile and, as Guillen essentially concedes, an admonishment would have cured any possible harm. By not objecting, Guillen waived this issue for appeal and cannot resurrect it in the guise of a sua sponte duty to instruct.
Moreover, any error here was clearly harmless. The primary issue in this case was whether Guillen was the aggressor in the conflict and therefore whether the defense theories of self-defense or imperfect self-defense were available. Evidence relating to the Watkins shooting had little relevance to this issue and there was strong evidence supporting a finding Guillen was the aggressor.
See discussion in part III, post, discussing the sufficiency of the evidence to support Guillens conviction of attempted murder.
III
Sufficiency of Evidence — Attempted Murder
Guillen contends the evidence is insufficient to support his conviction of attempted murder. Guillen asserts the prosecutor failed to prove beyond a reasonable doubt that he did not believe he needed to defend himself when he fired at Holmes.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Express malice exists when the defendant harbored an intent unlawfully to kill. (§ 188.) Implied malice exists " `when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . . " (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) Second degree murder is an unlawful killing with malice but without premeditation and deliberation. (Id. at p. 102.)
Voluntary manslaughter is a killing which results from "a sudden quarrel or heat of passion" or from an imperfect self-defense. (§ 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 773, 780 & fn. 4.) Imperfect self-defense exists when an individual has an honest but unreasonable belief in the need for self-defense. (People v. Rogers, supra, 39 Cal.4th 826, 883.)
An individual is generally not entitled to claim self-defense or imperfect self-defense when his or her unlawful or wrongful conduct created the circumstances that legally justified his adversarys use of force, attack or pursuit. (People v. Oropeza (2007) 151 Cal.App.4th 73, 83; People v. Bates (1967) 256 Cal.App.2d 935, 939; Pen. Code, § 197.) Thus, a person who is the aggressor in a conflict generally does not have a right to claim self-defense or imperfect self-defense when the victim tries to defend himself.
The original aggressor does have a right of self-defense when the original attack was not deadly and the victim responded with deadly or other excessive force or when the original aggressor has attempted to withdraw from the conflict. (People v. Quach (2004) 116 Cal.App.4th 294, 301-302; People v. Hernandez (2003) 111 Cal.App.4th 582, 588-589.)
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We " ` "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We have no power to reweigh the evidence or judge the credibility of witnesses. (People v. Prosser (2007) 157 Cal.App.4th 682, 687.)
Here, the evidence when viewed in the light most favorable to the judgment shows that Guillen was an aggressor in the initial confrontation. Before the confrontation, Holmes did nothing to threaten Guillen and he was unaware of Guillens presence. Guillen approached Holmes with a closed fist as if to hit Holmes in the back of the head. Gibson stopped him by pushing him and saying, "Back off, Homie." Guillen, however, did not back off. Instead, he pulled out a gun and pointed it at Holmes. Although Holmes, Gibson, and Gibsons girlfriend put their hands in the air and backed away, Guillen continued to point the gun towards Holmes. Holmes was acting in self-defense when he attempted to disarm Guillen and Guillen fired the gun. While it may be highly likely that Guillen was afraid when he fired the gun since he had just been pushed and was "in the midst of an apparently hostile group," Guillen was not entitled to shoot Holmes or anyone else under the doctrines of self-defense or imperfect self-defense because Guillen by his wrongful conduct had created the situation where Holmes needed to defend himself. There was substantial evidence to support a finding Guillen was not entitled to shoot the unarmed Holmes; Holmes was only trying to defend himself from Guillens unlawful conduct.
IV
Sufficiency of Evidence — Gang Enhancement
Guillen contends there is insufficient evidence to prove that he "was a gang member, or that he entered the confrontation or shot his gun with the intent to commit a gang crime." Therefore, he contends there is insufficient evidence to support the criminal street gang enhancement.
To establish a criminal street gang enhancement, the prosecution must prove the underlying crimes were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . ." (§ 186.22, subd. (b)(1).) A finding of specific intent requires a subjective desire to benefit the gang in committing the offense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 5, p. 204.) It is not enough that the crime is based on personal reasons; it must be "gang related." (People v. Gardeley (1996) 14 Cal.4th 605, 622.) "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 424.) The gang enhancement elements may be established through expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)
A San Diego police detective testified as an expert on criminal street gangs. The detectives gang unit was assigned to specific criminal street gangs, including the rival Crips and Bloods gangs. Skyline Piru is a subset of the Bloods, and its strongholds are the Meadowbrook apartment complex and Skyline Park. Meadowbrook is a stronghold because it is a very large apartment complex and it is difficult for the police to enter without being detected. While the majority of people who live at Meadowbrook are not gang members, it does provide a haven for gang members to deal drugs, steal cars, hang out, and be a nuisance.
The extent to which gang members wear colors associated with their gang depends on the individuals status within the gang; more seasoned members who have proven their loyalty to the gang are not expected to display gang colors to the same extent as younger and newer gang members. Skyline Pirus colors were red and black. To prove their loyalty to the gang, members are expected to commit crimes as well as to backup and support fellow gang members by getting involved in a confrontation with rival gang members. Crimes committed by the Skyline Piru gang include murder, attempted murder, assault with a deadly weapon, assault, vandalism, terrorist threats, vehicle theft, drug transportation, possessing drugs for sale, rapes, robbery and conspiracy to commit crimes. People who associate with criminal street gangs, even if not members, do not cooperate with the police because it can lead to retaliation.
Individuals are documented as gang members if they meet at least three of nine criteria. The expert testified to eight police contacts with Guillen between August 2003 and January 2005. In the majority of the contacts, Guillen was contacted at the Meadowbrook apartments, was associating with other Skyline Piru gang members and was wearing red, the Skyline Piru gang color. On one occasion, Guillen who was wearing red, was part of a group that ran from the police. During three contacts, Guillen was not with documented gang members. Guillen had resided in the Meadowbrook apartments before January 2004. The gang expert testified that in his opinion Guillen was a member of the Skyline Piru gang based on his "hanging out, associating . . . and drinking beer" with gang members at the Meadowbrook apartments and running from the police. That Guillen did not claim gang affiliation was insignificant since many gang members do not do so to avoid being documented by the police. The gang expert found it unusual that a Skyline Piru gang member would wear a Cincinnati Reds hat displaying the letter "C," such as Guillen was wearing when he arrived at the party because Skyline Piru gang members tended to avoid that letter because it was associated with the Crips gang. However, the expert believed the red color of the hat could negate the "C." The jury was entitled to credit the experts opinion that Guillen was a member of Skyline Piru.
For example, members of Skyline Piru would say "Whats brackin?" instead of "Whats cracking?" or use the word "bool" for "cool."
The gang expert concluded the shooting was gang-related. The expert noted Guillens actions were consistent with backing up Jackson, a fellow gang member.
Guillen arrived armed with a gun after Jackson had called him. Jackson and Guillen approached Holmes from the same area, supporting an inference that Jackson and Guillen had a conversation before Jackson issued his challenge. Jackson used language that was intended to cause problems with people who associated with the Crips. Guillen personally benefitted as a gang member because the shooting demonstrated his loyalty to a gang member and earned him respect. The Skyline Piru gang also benefitted because shooting a Crip enhanced its reputation as a gang.
It is true, as Guillen points out, that there was evidence indicating this was a family party, and was not intended to be a gang party. The invited group of family and friends included people who associated with both the Skyline Piru and West Coast Crips and there had not been problems in the past among this group due to gang membership. As Gibsons girlfriend, who was a co-host of the party, explained, "Life isnt all about gangs . . . ."
However, it is also true that Guillen was not a regular member of this group; one of the hosts did not know Guillen while the other one had met him only once briefly. Neither of the hosts invited him to the party. Guillen did not arrive at the party until after Jackson apparently called and talked with him. Jackson was standing in the parking lot, apparently waiting for someone when Holmes arrived. Before Guillen arrived, Jackson was non-confrontational with Holmes. When Guillen arrived, he was wearing a red hat and red shoes. He did not park his car in a manner consistent with someone intending to attend a party and stay for a while. Instead of parking in one of the stalls of the parking lot or on the street, Guillen parked his car at an angle in the parking lot blocking other cars and left a passenger sitting in the car with music blaring. Guillen also arrived armed with a gun. These are additional indications that Guillens purpose was not to attend the party but to engage in a confrontation. Jackson confronted Holmes with a challenge that was clearly gang-related and insulting. Guillen supported the challenge by being armed and coming up behind Holmes with his fist raised.
Guillen was invited to the party by either Jackson or the hosts cousin, Sade Johnson.
When Holmes first arrived, Jackson asked Holmes for a cigarette. Holmes said he did not have one and asked, "Do you have a problem?" Jackson said, no. Holmes walked away. At that point, Holmes was not concerned about Jackson, everything appeared "cool."
Another witness testified the car was parked parallel to a fence along a side of the parking lot. Guillen testified he parked parallel to the fence and was unconcerned about blocking in other cars because he could easily move the car if anyone needed to leave. He denied having a passenger in the car.
Based on the experts opinion and other evidence, the jury was entitled to conclude Guillen was a member of the Skyline Piru gang, arrived at the party to support his fellow gang-member Jackson in a gang-related confrontation and the shootings were intended to benefit the Skyline Piru gang.
V
Firearm Enhancements
The jury made true findings on firearm allegations under section 12022.53, subdivisions (c) and (d) and section 12022.5, subdivision (a) for both counts. The court imposed two 25-year-to-life terms for the section 12022.53, subdivision (d) enhancement and stayed the other firearm enhancements pursuant to section 12022.53, subdivision (f). Guillen contends the court should have stricken, rather than stayed, the other firearm enhancements.
This issue was recently resolved by the Supreme Court in People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez). The court held that after a sentencing court imposes the longest possible term of punishment for a section 12022.53 firearm enhancement, it should impose and then stay any remaining firearm enhancements under section 12022.53 or section 12022.5 for the same crime.
Section 12022.5, subdivision (a) provides sentence enhancements of three, four or 10 years for the personal use of a firearm in the commission or attempted commission of any felony. Section 12022.53 provides for increasing and consecutive punishment on the use of a firearm in the commission of the enumerated felonies. Subdivision (c) provides for a 20-year term if the defendant "personally and intentionally discharges a firearm." (§ 12022.53, subd. (c).) Subdivision (d) provides for a 25-year-to-life term if the intentional discharge of the firearm caused "great bodily injury" or "death, to any person other than an accomplice." (§ 12022.53, subd. (d).)
Subdivision (f) of section 12022.53 addresses the situation when there are multiple firearm enhancements found true by a jury. In relevant part, section 12022.53, subdivision (f) provides, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section." (Italics added.) Subdivision (h) of section 12022.53 provides that, "[n]othwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Section 12022.5, subdivision (c) contains language identical to section 12022.53, subdivision (h).
In Gonzalez, supra, 43 Cal.4th 1118, 1125, the court noted the term "imposed" could mean either "imposed and then executed" or "imposed and then stayed" but the statutory language indicated the term "imposed" was intended in the former sense, that is, as "imposed and then executed." (Italics omitted.) As so interpreted, subdivision (f) of section 12022.53, "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, at p. 1127.) The court found than an interpretation that subdivision (f) of section 12022.53 required a court to strike, rather than stay, the prohibited firearm enhancements, would " `disserve the public safety policy that . . . underlies the legislative intent reflected in the statute [citation], by making it more difficult, if not impossible, to impose and execute the term of imprisonment for an initially prohibited firearm enhancement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal." (Gonzalez, at p. 1128.)
The court also noted its interpretation of section 12022.53, subdivision (f) "harmonizes section 12022.53 with the rationale underlying both section 654 and the Judicial Councils general rule that sets forth the procedure courts should follow when pronouncing sentence on any prohibited enhancement. (Cal. Rules of Court, rule 4.447.)" (Gonzalez, supra, 43 Cal.4th 1118, 1128.) Under the California Rules of Court, rule 4.447 "[n]o finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent upon the defendants service of the portion of the sentence not stayed."
The Advisory Committee explained the rationale for staying execution was "to avoid violating a statutory prohibition or exceeding the statutory maximum, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence" and cited in support People v. Niles (1964) 227 Cal.App.2d 749, 756. (Advisory Com. com., former rule 447, Deerings Ann. Code, Rules (1999 ed.) foll. rule 447, p. 220.) The Supreme Court noted in Gonzalez, supra, 43 Cal.4th 1118, 1129, that the Niles case "discussed the analogous rationale underlying section 654," concluding that staying punishment for a conviction under that section was the only possible " `reconciliation of the various policies involved. Any other method either incurs the risk of letting a defendant escape altogether, or else imposes an unnecessary burden on an appellate court and on the trial court on the inevitable remand for correction of sentence. " (Ibid., quoting People v. Niles, supra, 227 Cal.App.2d at p. 756.)
The legislative history indicated the statute "was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, rather than strike, prohibited punishment under section 12022.53." (Gonzalez, supra, 43 Cal.4th 1118, 1129.) The Gonzalez court concluded that staying, rather than striking, the prohibited firearm enhancements, "serves the legislative goals of section 12022.53 by making the prohibited enhancements readily available should the section 12022.53 enhancement with the longest term be found invalid on appeal." Further, staying the prohibited enhancements makes it clear that the trial courts intent is to stay a prohibited enhancement rather to exercise its discretion to strike an enhancement under section 1385. (Gonzalez, at p. 1129.)
We are bound to follow decisions by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Accordingly, we find no error in the courts decision to stay, rather than strike, the section 12022.53, subdivision (c) and 12022.5, subdivision (a) firearm enhancements.
VI
Great Bodily Injury Enhancement
Guillen contends the court should have stricken, rather than stayed, a section 12022.7, subdivision enhancement on count 2 for the personal infliction of great bodily injury on a nonaccomplice.
Section 12022.53, subdivision (f) not only provides that an enhancement for a firearm specified in section 12022.5 shall not be imposed in addition to a section 12022.53 enhancement, but also provides that a great bodily injury enhancement under section 12022.7 "shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)." (§ 12022.53, subd. (f).) Subdivision (d) imposes a 25-year-to-life term when a defendant personally and intentionally discharges a firearm and causes great bodily injury or death to a nonaccomplice. The court here imposed a section 12022.53, subdivision (d) enhancement.
Under the rationale of Gonzalez and its interpretation of the statutory language and legislative intent of section 12022.53, it is clear that the proper procedure is to stay, rather than strike, a section 12022.7 enhancement when section 12022.53, subdivision (f) prohibits imposition of the enhancement. Accordingly, we find no error in the courts decision to stay the section 12022.7, subdivision (a) enhancement.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, J.
HUFFMAN, J.