Opinion
F050748
6-14-2007
THE PEOPLE, Plaintiff and Respondent, v. OSCAR AGUILAR, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Carlos A. Martinez, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
On July 31, 2005, appellant Oscar Aguilar fatally shot Ramon Ceballos after they exchanged words in a parking lot. Appellant was charged and convicted of first degree murder, with the special allegation found that he personally and intentionally discharged a handgun that proximately caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)). He was sentenced to 25 years to life for first degree murder, with a consecutive term of 25 years to life for the special allegation. On appeal, he contends the consecutive indeterminate term must be stricken. We will affirm.
All further statutory citations are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On May 2, 2006, an amended information was filed in the Superior Court of Tulare County charging appellant with count I, murder (§ 187, subd. (a)) and count II, discharging a firearm from a vehicle at a person (§ 12034, subd. (c)). As to both counts, it was alleged appellant personally and intentionally discharged a handgun that proximately caused great bodily injury or death (§ 12022.53, subd. (d)).
The amended information alleged the enhancement for proximately causing great bodily injury "and" death, whereas section 12022.53, subdivision (d) states the phrase great bodily injury "or" death. Since the instant case involved a fatal shooting, the disparity is of no moment.
On May 16, 2006, appellants jury trial began. On May 19, 2006, appellant was convicted of first degree murder and discharging a firearm from a vehicle at a person, and the special allegations were found true.
On June 23, 2006, the court sentenced appellant to 25 years to life for count I, with a consecutive term of 25 years to life for the special allegation.
In section II, post, we will address the courts quizzical statement that it was "striking" count II pursuant to "section 654."
On July 6, 2006, appellant filed a timely notice of appeal.
FACTS
On July 31, 2005, several people were spending the afternoon at Murray Park in Porterville. A large group of adults and children were attending a family party at the community swimming pool, and several other individuals were socializing in the nearby parking lot. These witnesses observed the following activities.
Ramon Ceballos was socializing in the parking lot with some friends. At one point in the late afternoon, a green Ford Thunderbird drove through the parking lot. Appellant was the driver and Israel Ponce was sitting in the front passenger seat. Ceballos left his friends and approached appellants car by himself. Ceballos seemed "kind of mad," he repeatedly yelled at the cars occupants to get out of the car, and they argued and exchanged angry words. Appellant and Ponce rolled up their car windows but they could not drive away because their car was blocked by other traffic in the parking lot. Ceballos slammed his hands on the car and hit the windows, but the witnesses did not see Ceballos kick the car. The other cars cleared out of the driveway, and appellant was able to drive out of the parking lot and left the area. The entire encounter lasted about 30 seconds.
About 15 minutes later, the green Thunderbird returned to the parking lot. Appellant and Ponce were in the car, and gestured toward Ceballos and yelled to him to come to the car. Ceballos approached the passenger side of appellants car by himself. He threw up his arms, pointed at the car, and again exchanged words with appellant. Ceballos did not touch the car.
When Ceballos was about 12 feet from the car, Ponce leaned back in the front passenger seat, and appellant leaned toward the passenger window and fired three shots at Ceballos. Ceballos immediately fell to the ground. The witnesses reported the green Thunderbird "smoked it" and the tires squealed as it left the parking lot.
The police responded to the parking lot around 8:10 p.m. Ceballos was laying on the ground and was not responsive. Ceballos was transported to the hospital but died of three gunshot wounds to his upper right chest, his lower abdomen, and the left side of his back, above his hip.
Within 15 minutes of the shooting dispatch, the police observed the green Thunderbird driving away from the area at a high rate of speed. The officers conducted a traffic stop about a mile and a half from the park. Appellant was in the drivers seat and Ponce was in the front passenger seat, and they stepped out of the car without incident.
The officers found a nine-millimeter handgun on the drivers side floorboard. A partially-filled magazine was inserted into the handgun, and the weapon was in the firing position with the hammer pulled back. There were three spent shell casings in the car which were recovered from the front passenger floorboard, between the cushions in the passenger-side back seat, and on the floorboard of the passenger-side back seat.
Detective Sam Garcia interviewed appellant at the police department, advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions. Appellant said Ceballos had previously initiated two verbal and physical confrontations with him. Appellant stated that when he drove through the parking lot that day, Ceballos walked up to his car and exchanged angry words with him. Appellant knew there was going to be a confrontation so they rolled up the car windows, but they could not drive out of the parking lot because of the other cars. Ceballos was holding a beer bottle, threw it down, kicked the drivers door several times, and tried to open the drivers door. Appellant was finally able to drive away and left the parking lot.
Appellant stated that as he drove away, a friend called his cell phone and asked what happened at the park. The friend encourage appellant to return to the parking lot, and appellant agreed.
Appellant said when he drove back to the parking lot, Ceballos threw two beer bottles at his car. Ponce told appellant to leave before Ceballos broke the car windows. Ceballos shouted at him to get out of the car, and walked toward the passenger side of the vehicle by himself at a fast pace. Appellant admitted he reached under the drivers seat and retrieved the nine-millimeter handgun and the magazine, loaded the gun, and chambered a round. Appellant also admitted that he leaned across Ponce and shot Ceballos through the front passenger window. Appellant did not know how many shots he fired at Ceballos. Appellant insisted he was not trying to kill Ceballos, but he just wanted to scare him because appellant thought Ceballos was going to pull a knife or punch Ponce. Appellant admitted he never saw Ceballos with a weapon.
The police searched the parking lot and did not find any broken beer bottles in the area. The witnesses reported they never saw Ceballos with a weapon or throwing any beer bottles at the green Thunderbird. There was no visible damage to the car consistent with someone kicking the vehicle.
At trial, appellant testified he had two prior encounters with Ceballos before the homicide. Appellant testified the first encounter occurred at Murray Park, about a month and a half before the homicide. Appellant and three friends arrived at the park in appellants car. Ceballos was also there with friends. Ceballoss car hit the back of appellants car. Appellant and Ceballos argued, and appellant said he did not want any problems. Ceballos laughed and the incident ended.
Appellant testified the second encounter occurred a short time later, when Ceballos and his friends arrived at appellants location. They were holding bats and tire irons, and headed toward appellants car. Appellant testified he ran away because he was afraid. Ceballos and his friends did not chase appellant. When appellant went back to check on the vehicle, he discovered the cars windows and headlights were broken, and the top of the car was damaged. Appellant was sure Ceballos and his friends were responsible, but he did not actually see them inflict the damage.
Appellant testified that on the day of the homicide, he drove through the parking lot at Murray Park with Ponce. Appellant was stuck in a traffic jam, and he realized that Ceballos was walking toward the car. Appellant raised the windows and locked the doors, but Ceballos "started punching the glass to break them and saying for me to get out." Appellant slightly lowered the window and told Ceballos that he did not want any problems. Ceballos replied "that he was going to kill me." Ceballoss friends were yelling at appellant, and appellant asked Ceballos to have his friends calm down. Instead, Ceballoss friends walked to appellants car and kicked the vehicle. Appellant testified the other cars in the parking lot finally moved and he was able to drive away.
In rebuttal, Detective Garcia testified that when he interviewed appellant, appellant never said that Ceballos threatened to kill him.
Appellant testified that as he drove away, he used his cell phone and spoke to some of his friends who were still in the parking lot. His friends warned him to stay away because Ceballos was still there. His friends then said that Ceballos was not there any more, so appellant "went more trustingly to the park because they told me he wasnt there."
Appellant testified that he drove back to the park about 15 minutes after the earlier encounter. When he arrived in the parking lot, he discovered his friends were leaving but Ceballos was still there. Ceballos threw a beer can at appellants car but it missed. Ceballos yelled at appellant, and appellant was again stuck behind other cars and could not drive out of the parking lot. Appellant denied that he was yelling or making signs at Ceballos, but he was not sure if Ponce was doing so.
On direct examination, appellant testified Ceballos threw a beer can at his car. On cross-examination, the prosecutor pointed out that appellant told Detective Garcia that Ceballos threw a beer bottle. Appellant replied: "Can, can, can, can, bottle of beer," and testified it was "like a glass bottle."
Appellant testified that Ponce thought Ceballos was going "`to fuck us up now," and appellant became frightened. "[T]hats when I also put my hand under my seat and thats when I got the gun and thats when I fired." Appellant never saw Ceballos with a weapon, but he was afraid Ceballos was going to pull a knife and "cut off our heads and we were not going to be able to do anything." Appellant admitted he loaded the gun and chambered a round. Appellant testified a friend had left the gun in his car. Ceballos approached the passenger side and the car window was down. Ceballoss hands were in fists and he was yelling at appellant, "so before he arrived, around ten feet, thats when I fired," and Ceballos fell to the ground. Appellant was not sure if he fired more than twice at Ceballos, but he only intended to scare him. The other traffic cleared away and appellant drove out of the parking lot. Appellant testified the police pulled him over about 15 minutes after the shooting.
Appellant was convicted of first degree murder and discharging a firearm from a vehicle at a person, with the special allegations that appellant personally and intentionally discharged a handgun that proximately caused great bodily injury or death. He was sentenced to 25 years to life for first degree murder, with a consecutive term of 25 years to life for the special allegation, for an aggregate term of 50 years to life.
According to the probation report, appellant was 22 years old at the time of trial.
DISCUSSION
I.
THE COURT PROPERLY IMPOSED THE CONSECUTIVE INDETERMINATE TERM
At the sentencing hearing, the court imposed the indeterminate term of 25 years to life for count I, first degree murder, with a consecutive indeterminate term of 25 years to life for the enhancement, that he personally and intentionally discharged a handgun that proximately caused great bodily injury or death, pursuant to section 12022.53, subdivision (d).
Appellant contends the court improperly imposed the consecutive indeterminate term for the section 12022.53, subdivision (d) enhancement and it must be stricken because it was necessarily included in the first degree murder conviction, multiple punishment violates the constitutional prohibitions against double jeopardy, and the consecutive indeterminate term is barred by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), People v. Seel (2004) 34 Cal.4th 535 (Seel), and section 654.
Appellants arguments are based on several well-recognized principles. "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); § 954.) However, "[a] judicially created exception to the general rule permitting multiple conviction `prohibits multiple convictions based on necessarily included offenses. [Citation.]" (Reed, supra, 38 Cal.4th at p. 1227.) In addition, multiple convictions, even with only a single punishment, violate section 654 when they are for a greater and a lesser included offense. (People v. Greene (1973) 34 Cal.App.3d 622, 654.)
Ordinarily, one offense may be necessarily included in another under either of two tests. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]" (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
In Reed, the California Supreme Court clarified that where the validity of multiple convictions is in issue, only the statutory elements test is used to determine whether an offense is necessarily included in another. (Reed, supra, 38 Cal.4th at pp. 1228-1229.) "The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime.... But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. `[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged .... [Citation.]" (Id. at pp. 1229-1230.)
"... Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Reed, supra, 38 Cal.4th at p. 1231.)
Given this background, appellant asserts the section 12022.53, subdivision (d), enhancement, for personally and intentionally discharging a handgun that proximately caused great bodily injury and death, is a lesser included offense of first degree murder, such that a consecutive indeterminate term cannot be imposed for that enhancement.
There are several problems with appellants arguments. First, appellant asserts the section 12022.53, subdivision (d) enhancement must be treated as a lesser included offense of first degree murder, based on the nature of the pleadings and the prosecutions theory of the case. In People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), the California Supreme Court considered and rejected a similar argument. In Wolcott, the court considered whether assault with a deadly weapon was a lesser-included offense of robbery with an enhancement for use of a firearm. The defendant argued that the elements of the greater crime plus the enhancement (robbery and firearm use) included all the elements of the lesser crime (assault with a deadly weapon). (Id. at p. 98.)
Wolcott rejected this argument, and held that enhancement allegations are not to be considered for purposes of determining lesser included offenses. (Wolcott, supra, 34 Cal.3d at p. 96.) Wolcott held that "a `use enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses." (Ibid.) Wolcott held the elements of the greater offense (robbery) did not include the elements of the lesser (assault with a deadly weapon), because robbery could be committed without attempting to inflict violent injury and without the present ability to do so. (Id. at p. 100.) Wolcott held that the additional consideration of the firearm enhancement did not alter this conclusion, because the enhancement "`does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. [Citations.]" (Ibid.)
Wolcott rejected the view, then held by a minority of appellate courts, that the accusatory pleading test should apply to make one offense a lesser included offense of another because of an enhancement allegation, when it is not a necessarily included offense as a matter of law, and thus rejected the defendants argument that robbery and the enhancement necessarily included assault with a deadly weapon under the accusatory pleading test. (Wolcott, supra, 34 Cal.3d at pp. 100-101.) Wolcott saw "no reason to adopt that course" because the weight of authority was against it and trial procedure would become "muddled" if finders of fact had to make enhancement findings before rendering verdicts on lesser-included offenses. (Id. at p. 101.)
The dissent in Wolcott reached a contrary conclusion, and asserted that enhancement allegations should be treated as part of the accusatory pleading, because "[t]o hold otherwise would be to treat a significant factual allegation which appears on the face of the pleading as if it did not exist." (Wolcott, supra, 34 Cal.3d at p. 110 (conc. & dis. opn. of Bird, C. J.).)
Wolcotts holding that enhancements are not to be considered in the lesser-included offense analysis has not been overturned. (See, e.g., People v. Parks (2004) 118 Cal.App.4th 1, 6; In re Jose H. (2000) 77 Cal.App.4th 1090, 1094; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 10-11.) While appellant contends Wolcotts reasoning is flawed, we remain obliged to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We acknowledge that the California Supreme Court has granted review in two cases that involve the relationship between enhancements and charged offenses. (People v. Sloan, review granted June 8, 2005, S132605 [should enhancement allegations be considered in determining whether a lesser offense is necessarily included in a charged offense]; People v. Izaguirre, review granted June 8, 2005, S132980 [should a section 12022.53, subdivision (d) enhancement be considered a lesser-included offense within the conviction for first degree murder with a drive-by shooting special circumstance].) We obviously cannot reject existing Supreme Court authority on the basis of speculation about what might happen in a pending case. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Appellant acknowledges Wolcott, but asserts it was undermined by Apprendi such that enhancements allegations must be considered in the determination of lesser included offenses. However, there is nothing in these cases which undermines Wolcott or requires such a conclusion. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490; see also Blakely v. California (2004) 542 U.S. 296, 301, 303-304 (Blakely); Cunningham v. California (2007) 549 U.S. ___ (Cunningham).) Apprendi further held that "when the term `sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. Indeed, it fits squarely within the usual definition of an `element of the offense." (Apprendi, supra, 530 U.S. at p. 494, fn. 19; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 326 ["Apprendi treated the crime together with its sentence enhancement as the `functional equivalent of a single `greater crime. [Citation.]"].)
Apprendi, Blakely, and the recent ruling in Cunningham, however, say nothing about determining what counts as an element of an offense for purposes of determining when multiple convictions for greater and lesser offenses are permissible, and therefore do not compel the conclusion that due process requires conduct enhancements be treated similarly to offenses for all purposes. In accordance with Apprendi, Blakely, and Cunningham, the jury herein found true beyond a reasonable doubt that appellant personally and intentionally discharged a firearm proximately causing great bodily injury or death, pursuant to section 12022.53, subdivision (d).
Appellant next asserts the California Supreme Court effectively overruled Wolcott in Seel, supra, 34 Cal.4th 535, but such a conclusion cannot be made in the absence of further authority. In Seel, the appellate court held the evidence was insufficient to prove the section 664, subdivision (a) premeditation allegation in an attempted murder case. (Seel, supra, 34 Cal.4th at p. 539.) Seel relied on Apprendi, and held that principles of federal double jeopardy barred the state from retrying the defendant on the premeditation allegation. Seel disapproved an earlier decision that held the section 664, subdivision (a) allegation was a penalty provision, and held the premeditation enhancement in an attempted murder case was not a "typical sentencing determination, like a prior conviction allegation, to which double jeopardy protections do not apply." (Seel, supra, 34 Cal.4th at p. 550 .)
"`[W]hen the term "sentence enhancement" is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict." (Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19.)
Seel held that in light of Apprendi, a special allegation under section 664, subdivision (a) constitutes the functional equivalent of an element of the greater offense (attempted first degree murder) within the meaning of the federal double jeopardy clause, because it exposes a defendant to a greater punishment than authorized by the jurys verdict, and "`goes precisely to what happened in the "commission of the offense." [Citation.]" (Seel, supra, 34 Cal.4th at p. 549.) "Apprendi compels the conclusion that section 664(a) constitutes an element of the offense. [Citation.]" (Ibid.)
Appellant contends the "functional equivalent" language from Apprendi and Seel compels the conclusion that an enhancement must be treated as the functional equivalent of an element of any offense in which it is alleged for the purposes of seeking an enhanced sentence. However, there is nothing in Apprendi or Seel which undermines Wolcotts holding that enhancement allegations have no bearing on determining lesser included offenses, or lends greater weight to Wolcotts dissent. Apprendi held that sentencing enhancements must be tried to the jury. Based on Apprendi, Seel held that the premeditation allegation in an attempted murder case constitutes the functional equivalent of an element of the greater offense (attempted first degree murder, rather than attempted second degree murder) within the meaning of the federal double jeopardy clause. Neither the holding or reasoning of Seel conflicts with Wolcotts conclusion that a firearm use enhancement "`does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. [Citations.]" (Wolcott, supra, 34 Cal.3d at p. 100.)
Nevertheless, even if appellants analysis is accepted, and the section 12022.53, subdivision (d) enhancement was considered in the lesser included offense analysis, his argument still fails. Under such an argument, the greater offense would be first degree murder with the enhancement for personally and intentionally discharging a firearm proximately causing great bodily injury or death, and the lesser included offense would be first degree murder. Appellant was punished only for the greater offense, not for both the greater and lesser offenses.
Appellant acknowledges People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins), but argues the phrase "[n]otwithstanding any other provision of law" in subdivisions (b), (c) and (d) of section 12022.53 should not be interpreted as mandatory, because of the California Supreme Courts interpretation of similar language in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524 (Romero). We do not find support for appellants position in Romero. It held that the words "`[n]otwithstanding any other law" in section 667, subdivision (f)(1) of the Three Strikes law do not preclude a trial court from dismissing a prior "strike" conviction pursuant to section 1385. (Romero, supra, at p. 524.) Romero based its conclusion on the fact that the Three Strikes law only says its provisions "`shall be applied in every case in which a defendant has a prior felony conviction .... [Citation.] ... Thus, the command of the Three Strikes law—that it shall be applied `[n]otwithstanding any other law—cannot literally be followed without reference to and, if appropriate, action `pursuant to, section 1385." (Id. at p. 524.) Thus, the statutory language was interpreted in the context of the entire "Three Strikes" law, including section 667, subdivision (f)(2), which authorizes the People to move to strike the prior conviction pursuant to section 1385. (Romero, supra, 13 Cal.4th at p. 524.)
In contrast, section 12022.53, subdivision (d) does not say that it "shall be applied" to persons falling under its provisions. It says that notwithstanding any other law, those persons "shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subd. (d), italics added.) Unlike the Three Strikes law, this command can and must "literally be followed without reference to" section 654. (Romero, supra, 13 Cal.4th at p. 524.) Romeros reasoning does not apply here.
The Ninth Circuit recently rejected similar challenges to section 12022.53 in Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190 (Plascencia):
"In Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court made clear that the protection against multiple punishments for the same offense did not necessarily preclude cumulative punishments in a single prosecution. The key to determining whether multiple charges and punishments violate double jeopardy is legislative intent. Id. at 368-69, 103 S.Ct. 673. When the legislature intends to impose multiple punishments, double jeopardy is not invoked. Id.
"Here, the language of California Penal Code § 12022.53 is clear. Subsection (d) provides for a 25 year enhancement when a `firearm is used to commit murder. There is, therefore, no question as to what the California legislature intended. As described by the California Court of Appeal, the California legislature has simply determined that `a criminal offender may receive additional punishment for any single crime committed with a firearm. Accordingly, we reject Plascencias double jeopardy argument." (Plascencia, supra, 467 F.3d at p. 1204.)
While Plascencia is not binding on this court (People v. Hoag (2000) 83 Cal.App.4th 1198, 1205), we agree with the analysis therein.
Finally, appellant contends that section 654 prohibits the imposition of the consecutive indeterminate term for the section 12022.53, subdivision (d) enhancement. Hutchins considered and rejected the identical section 654 argument. "[T]he purpose of section 12022.53 is to deter persons from using firearms in the commission of specified felonies. In the case of subdivision (d) of that section, the statutes purpose quite specifically is to deter persons from inflicting great bodily injury or death through the intentional discharge of firearms in the commission of such felonies ...." (Hutchins, supra, 90 Cal.App.4th at p. 1314.)
"Clearly, in enacting [section 12022.53] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. Nor should section 654 logically apply in such a situation. The manner in which any crime is accomplished may vary in innumerable respects. Thus, ` ... murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. [Citation.] Section 654 is not implicated by the imposition of a sentencing enhancement on a particular manner of committing murder—with the use of a firearm—adjudged by society through its legislative representatives as particularly egregious and dangerous. What the Legislature has done by enacting section 12022.53 is not to punish the same single criminal act more than once or in more than one way. Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric." (Hutchins, supra, 90 Cal.App.4th at pp. 1313-1314.)
Hutchins concluded "the law is not punishing [the defendant] twice for the same act; rather, the law is punishing him once each for the components of that act which make it so dangerous and antisocial." (Hutchins, supra, 90 Cal.App.4th at p. 1315.) Other courts have reached similar conclusions when defendants raise section 654 challenges to imposition of firearm use enhancements. (See People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1536 [enhancement for discharging a firearm from a moving vehicle not double punishment under section 654 because it is separate from the underlying murder offense]; People v. Ross (1994) 28 Cal.App.4th 1151, 1157-1159 [proper to punish defendant for voluntary manslaughter and firearm use enhancement because the gun was simply the method selected by defendant to accomplish the crime, and the particular method selected subjects him to an additional penalty"]; People v. Sanders (2003) 111 Cal.App.4th 1371, 1373-1375 [rejecting argument that section 654 precluded trial court from sentencing defendant for first degree murder and section 12022.53, subdivision (d) firearm enhancement].)
The applicability of section 654 to sentence enhancements and, in particular, imposition of multiple enhancements for the single discharge of a firearm resulting in great bodily injury or death under section 12022.53, subdivision (d), is currently pending before the Supreme Court. (People v. Palacios, review granted May 11, 2005, S132144.)
We agree with the analysis in Hutchins and the related cases. By sentencing appellant for both a firearm enhancement and the term for the underlying offense, "the law is not punishing [the defendant] twice for the same act; rather, the law is punishing him once each for the components of that act which make it so dangerous and antisocial." (Hutchins, supra, 90 Cal.App.4th at p. 1315.) The enhancement is intended "to deter a particular form of violence judged especially threatening to the social fabric." (Id. at p. 1314.)
Such a conclusion is not undermined by Seel, since the Legislature specifically directed that section 12022.53 enhancements are mandatory and applied "[n]otwithstanding any other provision of law" and may not be stayed. (§ 12022.53, subds. (d), (g), (h); Hutchins, supra, 90 Cal.App.4th at p. 1315.) "Clearly, in enacting [section 12022.53] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes ... was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties." (Hutchins, supra, 90 Cal.App.4th at p. 1313.) We agree with the rationales expressed in Hutchins, Ross, and Sanders.
In the instant case, in full compliance with Apprendi, Blakely, and Cunningham, the jury found true beyond a reasonable doubt that appellant personally and intentionally discharged a firearm proximately causing great bodily injury or death in committing the murder. Those findings were properly used to enhance appellants indeterminate sentence for first degree murder by another term of 25 years to life. Since the section 12022.53, subdivision (d) enhancement is not an independent substantive offense or crime, appellants punishment for both the underlying murder and the enhancement does not violate section 654s prohibition on double punishment.
II.
CORRECTION OF THE ABSTRACT OF JUDGMENT
In count II, appellant was charged and convicted of discharging a firearm from a vehicle at a person, in violation of section 12034, subdivision (c). The court was not clear on the sentence it imposed for count II.
The probation report noted that a violation of section 12034, subdivision (c) carried terms of three, five, or seven years, and recommended the midterm of five years, with an additional indeterminate term of 25 years to life for the special allegation for count II, to run concurrent to the indeterminate terms imposed for count I and the special allegation.
At the sentencing hearing, appellant requested the court to stay the term imposed for count II, because it was based on the same conduct as count I, first degree murder. The court replied:
"I believe that [defense counsel is] correct. The Count 2 was the firing from the vehicle which resulted in murder and I believe that that is 654."
The court imposed the indeterminate terms for count I and the enhancement, and then stated:
"... In Count 2, Count 2 is stricken pursuant to Penal Code Section 654. It is a lesser included offense to Count 1." (Italics added.)
The minute order states that count II was "[s]tricken" pursuant to section 654. The abstract of judgment does not contain any reference to count II.
Respondent contends the trial court mistakenly ordered count II stricken and, since the abstract is silent, this court should order it amended to indicate the court stayed the term for count II pursuant to section 654. Appellant does not directly address this particular question about count II, but addresses count II in the discussion about whether the section 12022.53 enhancement should be treated as a lesser included offense of count I. Appellant correctly points out that prior to trial, the prosecutor stated that count II, discharging a firearm from a vehicle at a person, was an "alternative" charge to count I. Appellant also notes that the prosecutor repeatedly stated he was proceeding on only one theory of murder, based on discharge of a firearm from a motor vehicle.
It would seem a simple matter to order the amendment of the abstract to reflect that the term imposed for count II was stayed pursuant to section 654. However, while the probation report recommended the midterm of five years, the court never actually imposed a term for count II, which it then would have stayed. Instead, it ordered count II "stricken" because it was a "lesser included offense" to count I. The record suggests the court intended to completely strike the conviction in count II and the enhancement attached therein, possibly based on the belief that count II was a lesser included offense of count I, and the prosecutors repeated statements that count II was an alternative charge to count I. As explained in section I, ante, multiple convictions may not be based on necessarily included offenses. (Reed, supra, 38 Cal.4th at p. 1227.)
Remand is required to permit the trial court to clarify its intentions as to count II.
DISPOSITION
The judgment of conviction and sentence imposed in count I is affirmed. The matter is remanded to the trial court with direction to clarify its disposition as to count II and such further action as may be appropriate.
We concur:
HILL, J.
KANE, J.