P. v. Jefferson

P. v. Jefferson

Filed 8/18/08 P. v. Jefferson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. OTIS THOMAS JEFFERSON, Defendant and Appellant.

B203238 (Los Angeles County Super. Ct. No. YA066457)

APPEAL from a sentence of the Superior Court of the County of Los Angeles, John V. Meigs, Judge. Affirmed, in part, reversed, in part, and remanded with directions.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

The issue in this case is whether the trial court erred when it imposed and executed a sentence enhancement for infliction of great bodily injury under Penal Code section 12022.7, subdivision (a)^[1]in addition to a sentence enhancement for discharging a firearm causing great bodily injury under section 12022.53, subdivision (d). We hold that the trial court properly imposed the section 12022.7, subdivision (a) enhancement, but erred by not staying that enhancement. We also hold that the trial court erred by not imposing and staying the other firearm enhancements found true by the jury as to Counts 2 and 3 under section 12022.53, subdivisions (b) and (c).

PROCEDURAL BACKGROUND

Defendant and appellant Otis Thomas Jefferson (defendant) challenges on appeal the sentences imposed by the trial court on two of the three counts on which he was convicted. Defendant was convicted on Count 2, which charged him with second degree robbery in violation of section 211, a felony. He was also convicted on Count 3, which charged him with attempted murder in violation of sections 664 and 187, subdivision (a), a felony. As to both counts, the jury found true, inter alia, the special allegations that defendant (i) personally and intentionally discharged a firearm which proximately caused great bodily injury to the victim, within the meaning of section 12022.53, subdivision (d)^[2](firearm discharge/bodily injury enhancement); and (ii) intentionally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a) (bodily injury enhancement).^[3] The jury also found true the further allegations that defendant (i) personally discharged a firearm within the meaning of section 12022.53, subdivision (c);^[4]and personally used a firearm within the meaning of section 12022.53, subdivision (b).^[5]

At the sentencing hearing, the trial court sentenced defendant on Count 2 to the midterm of three years, plus 25 years to life pursuant to section 12022.53, subdivision (d), and three years pursuant to section 12022.7, subdivision (a), for an aggregate sentence of 6 years [plus] 25 years to life. On Count 3, the trial court sentenced defendant to the midterm of seven years, plus 25 years to life pursuant to section 12022.53, subdivision (d), and three years pursuant to section 12022.7, subdivision (a), for an aggregate sentence of 10 years [plus] 25 years to life. The trial court then ordered that the remaining firearm enhancements found true by the jury would not be imposed.

DISCUSSION

On appeal, defendant contendsand the Attorney General agreesthat the trial court erred when it imposed and executed, as to Counts 2 and 3, the three-year bodily injury enhancements under section 12022.7, subdivision (a), in addition to the 25 years to life firearm discharge/bodily injury enhancements under section 12022.53, subdivision (d). According to the parties, section 12022.53, subdivision (f) precludes the trial court from imposing and executing the section 12022.7, subdivision (a) bodily injury enhancements in addition to the section 12022.53, subdivision (d) firearm discharge/bodily injury enhancements. We agree.

Section 12022.53, subdivision (f) provides: An enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [section 12022.53,] subdivision (d). Given the plain meaning of the language in subdivision (f), the trial court erred when it imposed and executed the three-year bodily injury enhancements under section 12022.7, subdivision (a) in addition to the 25 years to life firearm discharge/bodily injury enhancements under section 12022.53, subdivision (d).

The Attorney General, however, contendsand defendant agreesthat the three-year bodily injury enhancements under section 12022.7, subdivision (a) should not be stricken. Rather, according to the parties, those enhancements should have been imposed, but stayed. Again, we agree.

Here, the jury found true both the firearm discharge/bodily injury allegations under section 12022.53, subdivision (d) and the bodily injury allegations under section 12022.7, subdivision (a). The trial court then imposed the longest sentence of imprisonment under section 12022.5325 years to life under subdivision (d). In the recent decision of People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the Supreme Court held that section 12022.53 requires that after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed. (Gonzalez, supra, 43 Cal.4th at p. 1130, italics added.)

Although Gonzalez involved a firearm enhancement under section 12022.5, as opposed to the bodily injury enhancement under section 12022.7, subdivision (a) at issue here, the reasoning of Gonzalez applies to this case. Accordingly, the three-year bodily injury enhancements as to Counts 2 and 3 under section 12022.7, subdivision (a) were imposed properly by the trial court, but the court erred when it executed those sentence enhancements instead of staying them.

In light of our reading of Gonzalez, supra, 43 Cal.4th 1118, the trial court also erred when it failed to impose and stay the other firearm enhancements found true by the jury as to Counts 2 and 3. In addition to the two enhancements discussed above, the jury found true, as to Counts 2 and 3, the further allegations that defendant personally discharged a firearm within the meaning of section 12022.53, subdivision (c) and personally used a firearm within the meaning of section 12022.53, subdivision (b). In pronouncing sentence, however, the trial court declined to impose enhancements based on those true findings. The trial courts minute order states: The court orders that the remaining gun enhancements found to be true not be imposed at this time.

Because neither party raised this issue, we requested letter briefs from the parties asking them to address the issue in light of Gonzalez, supra, 43 Cal.4th 1118. We have now received and reviewed the parties letter briefs in which each of the parties agrees that the additional firearm enhancements found true by the jury should have been imposed and stayed. Therefore, the trial court erred in failing to impose and stay, as to Counts 2 and 3, the other firearm enhancements found true by the jury under section 12022.53, subdivisions (b) and (c).

DISPOSITION

The trial courts orders imposing the three-year bodily injury enhancements as to Counts 2 and 3 pursuant to section 12202.7, subdivision (a) are affirmed, but its orders executing those enhancements are reversed. The trial courts decision not to impose additional enhancements based on the true findings on the further firearm allegations as to Counts 2 and 3 under section 12022.53, subdivisions (b) and (c) is also reversed. The matter is remanded to the trial court with instructions to order that the three-year bodily injury enhancements imposed as to Counts 2 and 3 pursuant to section 12022.7,

subdivision (a) are stayed. The trial court is further instructed to impose and stay the firearm enhancements as to Counts 2 and 3 under section 12022.53, subdivisions (b) and (c). The abstract of judgment shall be amended to reflect accurately the foregoing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Section 12022.53, subdivision (d) provides: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally 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.

^[3] Section 12022.7, subdivision (a) provides: Any person who personally inflicts great bodily injury on any person other than an accomplice 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 three years.

^[4] Section 12022.53, subdivision (c) provides: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.

^[5] Section 12022.53, subdivision (b) provides: 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.