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People v. Bracamonte

California Court of Appeals, Second District, Fourth Division
Apr 1, 2003
No. B151466 (Cal. Ct. App. Apr. 1, 2003)

Opinion


Page 533c

107 Cal.App.4th 533c ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. LOUIE BRACAMONTE et al., Defendants and Appellants. B151466 California Court of Appeal, Second District, Fourth Division April 1, 2003

[Modification of opinion (106 Cal.App.4th 704; 131 Cal.Rptr.2d 334) on denial of petition for rehearing.]

This modification requires the movement of text affecting pages 711-714 of the bound volume report.

OPINION

THE COURT.

Before Vogel (C. S.), P. J., Hastings, J., and Curry, J.

The petitions for rehearing by appellants and respondent having been made, read, and duly considered, it is ordered that the petitions are denied.

It is further ordered that the opinion filed on February 27, 2003, is modified as follows:

The text of footnote 5 on page 19 [106 Cal.App.4th 712, advance report, fn. 5] is deleted. In its stead, the following text is inserted:

Respondent takes the position that the section 12022.5 firearm use enhancement on counts 1 and 3 as to Medina cannot be stricken for the reasons (1) "the trial court was prohibited in [2000 and] 2001 from striking a personal firearm use allegation under section 12022.5"; and (2) "[i]n 2002, a year after appellants were sentenced in this case, the California Legislature amended section 12022.5 to include subdivision (c), which 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.' (Stats. 2002, ch. 126 (AB 2173), § 3.) This amendment was a declaration of existing law as set forth in People v. Thomas (1992) 4 Cal.4th 206 [14 Cal.Rptr.2d 174], in which the California Supreme Court held that a trial court has no discretion to strike a firearm enhancement imposed under section 12022.5. (Id.. at pp. 208, 212-214.)"

Respondent's position is incorrect. Section 12022.5 must be construed in conjunction with section 12022.53 where, as here, personal firearm use under section 12022.53 is also alleged.

Page 533d

The court strikes a section 12022.5 enhancement under subdivision (f) of section 12022.53, which provides that "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.) Such directive is mandatory. No discretion is involved. (See also People v. Jenkins (1980) 28 Cal.3d 494, 505 [170 Cal.Rptr. 1]; People v. Tanner (1979) 24 Cal.3d 514, 521 [156 Cal.Rptr. 450].)

Respondent's companion position is that the trial court properly imposed and stayed the section 12022.5 enhancements, because "by staying the enhancement, it preserved ... Medina's sentence in the event of a reversal on another enhancement or count" and "safeguarded the section 12022.5 findings properly made at trial." Respondent urges that by staying the section 12022.5 enhancements, the court "did not add 'additional' prison terms" proscribed by section 12022.53, which, as rephrased by respondent, "mandates that the greatest enhancement be imposed and prohibits imposition of 'additional term[s] of imprisonment' for the enhancement. (§ 12022.53, subd. (f).)"

This position is untenable in the face of the plain and clear language that a section 12022.5 firearm use enhancement "shall not be imposed ... in addition to an enhancement imposed pursuant to ... section [12022.53]." (§ 12022.53, subd. (f).)

Moreover, such position is also based on the faulty premise that staying of the section 12022.5 enhancement is necessary "in the event of a reversal on another enhancement or count." No such need arises. In the situation where the reviewing court finds no enhancement under section 12022.53 could be imposed, then the section 12022.5 finding would be revived by operation of law.

There is no change in the judgment.


Summaries of

People v. Bracamonte

California Court of Appeals, Second District, Fourth Division
Apr 1, 2003
No. B151466 (Cal. Ct. App. Apr. 1, 2003)
Case details for

People v. Bracamonte

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LOUIE BRACAMONTE et al.…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 1, 2003

Citations

No. B151466 (Cal. Ct. App. Apr. 1, 2003)