Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM021894, CM023749
CANTIL-SAKAUYE, J.
In case No. CM021894, defendant George Raymond Rowell, Jr., was arrested and charged in connection with a December 2004 home invasion robbery during which he threatened and sexually assaulted the victim at gunpoint. In August 2005, while on bail in case No. CM021894, defendant was arrested and charged in case No. CM023749 with robbery and evading a police officer. Arresting officers found weapons, stolen property and drug paraphernalia in defendant’s car.
Defendant pled no contest in case No. CM021894 to robbery (Pen. Code, § 211 - count 2) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a) - count 3), and admitted he personally used a firearm in the commission of those offenses (§§ 12022.5, former subd. (a)(1) & 12022.53, subd. (b).) In case No. CM023749, defendant pled no contest to being a felon in possession of a firearm (§ 12021, subd. (a)(1) - count 3), receiving stolen property (§ 496, subd. (a) - count 4), and grand theft (§ 487, subd. (a) - count 5), and admitted he committed the offenses while on bail (§ 12022.1). The court granted the People’s motion to dismiss the remaining counts and allegations pursuant to the plea agreement.
Undesignated statutory references are to the Penal Code. The Legislature amended section 12022.5 in 2002 and eliminated the numbered subdivisions under subdivision (a). (Stats. 2002, ch. 126, § 3.) We will refer to this enhancement as section 12022.5, subdivision (a) as it reads now and as it read when defendant was charged in the December 2004 home invasion robbery.
The court sentenced defendant to 23 years in prison. In case No. CM021894, the court imposed the upper term of nine years for robbery in count 2, a consecutive term of eight months in count 3, and a consecutive term of 10 years for the firearm enhancement under section 12022.53, subdivision (b). The court imposed and stayed a consecutive term of 10 years for the firearm enhancement under section 12022.5, subdivision (a). As to case No. CM023749, the court sentenced defendant to a consecutive term of eight months in count 3, a consecutive term of eight months in count 4, a concurrent term of two years in count 5, and a consecutive term of two years for the section 12022.1 enhancement.
The sole issue on appeal is whether the court erred in staying rather than striking the firearm use enhancement imposed under Penal Code section 12022.5, subdivision (a). We postponed our decision in this appeal pending the Supreme Court’s resolution of the same issue in People v. Gonzalez (2006) 146 Cal.App.4th 327, another case from this court. The Supreme Court ruled in People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130, that the section 12022.5 firearm enhancement must be stayed, not stricken. We therefore affirm the trial court judgment.
DISCUSSION
Section 12022.5 provides for enhanced punishment of three, four or 10 years when an accused is found to have personally used a firearm in the commission of a felony. Section 12022.53, dubbed the “10-20-life law” (People v. Oates (2004) 32 Cal.4th 1048, 1052), also provides for enhanced sentences when the accused is found to have used a firearm in the commission of certain enumerated felonies. As we explained, the defendant admitted the personal gun use allegations when he entered his change of plea.
Section 12022.5, subdivision (a) provides: “Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
Section 12022.53 reads in relevant part:
Section 12022.53, subdivision (f) limits the number of enhancements that a court can impose for the use or discharge of a firearm and reads in part: “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.)
Section 12022.53, subdivision (h) provides: “Notwithstanding 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.”
The question before us is how the court should dispose of the section 12022.5, subdivision (a) enhancement after it sentenced defendant to 10 years for the section 12022.53 enhancement.
Relying on People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-714 (Bracamonte), disapproved in part as stated in People v. Gonzalez, supra, 43 Cal.4th at p. 1130, defendant argues it was error to stay the section 12022.5 enhancement. In Bracamonte, the jury found true firearm discharge and use allegations under section 12022.5 and 12022.53, subdivisions (b), (c) and (d) as to Bracamonte’s codefendant Medina. (Bracamonte, supra, at p. 706.) At sentencing, the trial court imposed a 25-years-to-life enhancement under section 12022.53, subdivision (d), and stayed the remaining enhancements. (Bracamonte, supra, at pp. 706-707.) On appeal, the court held that the section 12022.5 enhancement should have been stricken given the “plain and clear language” of section 12022.53, subdivision (f). (Bracamonte, supra, at p. 712.) Defendant argues, without elaboration, that Bracamonte controls.
The Attorney General asserts the rationale of Bracamonte is flawed. In support of hisargument that the correct procedure is to impose then stay execution of the sentence on a barred enhancement, the Attorney General cites identical language in sections 12022.5, subdivision (c) and section 12022.53, subdivision (h) which purports to limit the striking of the gun use and discharge enhancements. The Attorney General also argues California Rules of Court, rule 4.447 guides trial courts to stay execution of the sentence on an enhancement where the punishment is limited or prohibited by law.
In 2004, California Rules of Court, rule 4.447 provided: “No finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay shall become permanent upon the defendant’s service of the portion of the sentence not stayed.”
In Gonzales, the Supreme Court harmonized section 12022.53 “internally” by interpreting “the words ‘impose’ and ‘imposed,’ as used throughout subdivision (f), as shorthand to mean impose and then execute, as opposed to impose and then stay.” (43 Cal.4th at p. 1126.) It explained that “[i]f subdivision (f) is so interpreted, it 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.” (Id. at p. 1127.) The court pointed out that a contrary interpretation would make 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.” (Ibid.) An interpretation requiring the sentencing court to stay rather than strike the prohibited firearm enhancements serves the legislative goals of section 12022.53, that is, “to ensure that defendants who use a gun remain in prison for the longest time possible.” (Id. at p. 1129.) The Supreme Court did not rely on rule 4.447 of the California Rules of Court in its statutory analysis. (Id. at p. 1130.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J. HULL, J.
“(a) This section applies to the following felonies: [¶] . . . [¶] (4) Section 211 (robbery). [¶] . . . [¶]
“(b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.”