Opinion
Page 1528a
205 Cal.App.4th 1528a __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. ERIC HUNG LE et al., Defendants and Appellants. D057392 California Court of Appeals, Fourth District, First Division May 24, 2012[CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and II.
THE COURT
IT IS ORDERED the opinion filed April 27, 2012, (205 Cal.App.4th 739; __ Cal.Rptr.3d __) is modified as follows:
At DISCUSSION III, seventh paragraph beginning with "Although the People" and ending with "makes People v. Rodriguez applicable." (slip opn., p. 66) [205 Cal.App.4th 747, advance report, 3d full par., line 10], insert footnote 17 after the last sentence. Footnote 17 text reads: "In their petition for rehearing, the People argue that this court erred in affirming the trial court's decision in count 4 to stay additional punishment for personal gun use under section 12022.5, subdivision (a) (personal gun-use enhancement) and to impose the 10-year enhancement for the commission of a 'violent felony' – in this case a violation of section 245, subdivision (b) for assault with a semiautomatic weapon – under the criminal gang provision set forth in section 186.22, subdivision (b)(1)(C) (criminal gang enhancement). The People argue that 'the prosecutor in this case never asked the trial court to elevate the punishment for the gang enhancement to the "violent felony"' level under subdivision (b)(1)(C) of section 186.22 with the same conduct, personal gun use, that supported the section 12022.5 enhancement. Instead, ... the prosecutor here pled and proved a "bare"' gang enhancement under section 186.22 without reference to (1) gun use, (2) it being a "serious" or "violent" felony, or (3) either subdivision (b)(1)(B) or (b)(1)(C) [of section 186.22]. By doing so, the prosecutor exposed the defendant to the maximum possible sentence while not violating the holding of [People v.] Rodriguez. It was only by setting the level of punishment for the gang enhancement for a "violent felony" that the sentencing judge created a conflict with the [People v.] Rodriguez case.' (Fn. omitted.)
"We reject the People's form-over-substance argument. In focusing on the nature of the offense and the circumstances surrounding its commission
Page 1528b
(see People v. Rodriguez, supra, 47 Cal.4th at p. 507), we conclude the trial court did not err in (tacitly) finding, and substantial evidence in the record supports that finding, that the personal gun-use and gang enhancements in this case were both based on firearm use involving the same offense, viz. commission of assault with a semiautomatic weapon (§ 245, subd. (b)). As such, we conclude the instant case falls squarely within the holding of People v. Rodriguez and its prohibition against imposing multiple punishments for firearm use in the commission of a single offense. (See § 1170.1, subd. (f).)"
Sequentially renumber subsequent footnotes.
As modified, the petitions for rehearing by appellant and cross-appellant are denied.
There is no change in the judgment.