Opinion
D040742.
11-4-2003
THE PEOPLE, Plaintiff and Respondent, v. JACOB FLOYD, Defendant and Appellant.
A jury convicted Jacob Floyd of attempted murder (Pen. Code, §§ 664/187, subd. (a))[] with premeditation (§ 189). The jury found that in the commission of the attempted murder, Floyd personally used a firearm (§ 12022.5, subd. (a)), personally discharged a firearm (§ 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and intended to promote a street gang (§ 186.22, subd. (b)(1)). The jury also convicted him of assault with a firearm (§ 245, subd. (b)) in the commission of which he personally used a firearm (§ 12022.5, subd. (a)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Floyd appealed and we affirmed the convictions but remanded so the trial court could exercise its discretion to dismiss one or more of the charges. (People v. Floyd (Mar. 8, 2002, D034853) [nonpub. opn.] pp. 1-2; we take judicial notice of the record in D034853.) On remand, the trial court dismissed the section 186.22, subdivision (b)(1) gang promotion finding and otherwise reinstated the prior sentence of life with the possibility of parole for attempted premeditated murder enhanced by a term of 25 years to life for intentionally discharging a firearm, causing great bodily injury (§ 12022.53, subd. (d)). It stayed sentence on the remaining conviction and enhancements (& sect; 654). Floyd contends the trial court erred by denying his motion to dismiss the premeditation finding and by enhancing his sentence pursuant to section 12022.53, subdivision (d) after striking the gang promotion finding.
FACTS
On October 31, 1998, a Sur Trece Junior gang member was walking in an area claimed to be the territory of the East San Diego gang. As a car drove past the gang member, one of the occupants in the car yelled "East Side," in gang culture a challenge to fight. The car stopped, Floyd got out of the car and shot the Sur Trece member in the wrist and leg. The jury found Floyd was the shooter.
DISCUSSION
I
The trial court denied Floyds motion to strike the attempted murder with premeditation verdict, stating:
"Well, there was just no doubt in the trial testimony—the court already ruled on the premeditation allegation that this vehicle drove up. People from the vehicle were yelling out `East Side, which was the gang that Mr. [Floyd] was proud to be a member of. He got out of the car. He took that gun, and he shot it into a group of people six times. It would be virtually impossible to not find that that was premeditated. [¶] Possibly one could argue one stray bullet is not premeditated. Six bullets right at young citizens in this community, its pretty hard to come up with an argument—and Mr. Leahy tried, but its real hard to convince someone that youre not intending to kill. [¶] And so the jury made that determination. That was the right determination. Mr. [Floyd] was clearly entrenched in his gang lifestyle at the time he gave up his life in this case."
Floyd contends the trial court erred by denying his motion to strike the premeditation finding. He argues the court misunderstood the difference between premeditation and intent to kill. As the People point out, there are three factors commonly present in cases involving premeditation: planning, motive, and the manner of killing. (See People v. Koontz (2002) 27 Cal.4th 1041, 1081.) The trial courts comment considered all three factors. The car in which Floyd was an occupant drove past the victim, an occupant of the car yelled a gang challenge, the car stopped and Floyd got out of the car, walked into the street and fired a firearm at the victim. The jury, the trial court in denying a motion for a new trial, and this court on the first appeal found evidence sufficient to support the finding that Floyd premeditated the attempted murder. Nothing in the record supports the argument that the trial court disregarded the difference between premeditation and intent to kill. Not only did the court at the resentencing hearing express adequate reasons to support its conclusion that the attempted murder was premeditated, but it earlier specifically denied a motion for a mistrial Floyd made on the ground that during argument the prosecution erroneously equated premeditation and intent to kill. In that ruling, the court distinguished premeditation and intent to kill, saying that premeditation involves "planning [or] thinking beforehand, et cetera," which is not required to establish an intent to kill. The record reflects that the trial court understood the difference between premeditation and intent to kill.
II
Floyd contends that after the trial court struck the gang promotion finding (§ 186.22, subd. (b)(1)), the section 12022.53, subdivision (d), 25-year-to-life enhancement became inapplicable. He argues that section 12022.53, subdivision (e)(1) makes a gang allegation essential to application of the section 12022.53, subdivision (d) enhancement.
Section 12022.53 subdivision (d) provides:
"Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Floyd does not question that he inflicted great bodily injury on the victim while personally discharging a firearm during attempted murder, which is a felony described in subdivision (a). Rather, he argues subdivision (d) is inapplicable if the court strikes the section 186.22, subdivision (b) gang promotion enhancement because section 12022.53 subdivision (e)(1) provides:
"The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and approved:
"(A) The person violated subdivision (b) of Section 186.22.
"(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
Floyd points out that subdivision (e)(1) applies to "[t]he enhancements provided in this section" and the word "principal" covers the shooter. He argues that subdivision (e)(1) therefore requires pleading and proof of the street gang allegation for all enhancements included within section 12022.53.
We conclude that Floyds interpretation of section 12022.53 is inconsistent with the plain meaning of the text of the statute. Section 12022.53 creates three sentence enhancements: subdivision (b) imposes a 10-year enhancement for the personal use of a firearm in the commission of a described offense; subdivision (c) imposes a 20-year enhancement for the personal discharge of a firearm in the commission of a described offense; and subdivision (d) imposes a 25-year-to-life enhancement for the personal discharge of a firearm that proximately causes death or great bodily injury to a person other than an accomplice in the commission of a described offense. Subdivision (e) does not itself create an enhancement. Rather, it makes applicable one of the subdivision (b), (c) or (d) enhancements to a person who is a principal in the commission of a described offense regardless of whether that person personally used or discharged a firearm if the person violated section 186.22 and any principal used or discharged a firearm in the commission of a described offense. Therefore, an aider and abetter in a gang promotion activity may be subject to a section 12022.53, subdivision (b), (c) or (d) enhancement even though he or she did not personally use or discharge a firearm so long as any principal in the offense did so. The effect of section 12022.53, subdivision (e) is therefore to expand the situations in which the enhancements may be imposed rather than to restrict those situations. The subdivisions of section 12022.53 therefore do not conflict and the trial court did not err by enhancing Floyds sentence under section 12022.53, subdivision (d) after dismissing the section 186.22, subdivision (b)(1) gang promotion allegation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. and AARON, J. --------------- Notes: All statutory references are to the Penal Code.