P. v. Moss
Filed 3/8/07 P. v. Moss CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
Plaintiff and Respondent,
WILLIAM TYRONE MOSS,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. BA279578)
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Affirmed.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant William Tyrone Moss appeals from a judgment entered after a jury found him guilty of two counts of attempted murder under Penal Code sections 664/187, subdivision (a). The jury found true the allegations that the attempted murders were premeditated ( 664, subd. (a)), that appellant personally used a handgun ( 12022.53, subds. (b), (c), (d) & (e)(1)), and that the offenses were committed for the benefit of a gang ( 186.22, subd. (b)(1)(A)). We affirm.
Appellant contends that: (1) the evidence is insufficient to establish that he attempted to murder Joseph Edwards (Edwards), or, alternatively, the trial court erroneously instructed the jury, the People made an improper argument, and his counsel was ineffective by failing to object to the Peoples argument; (2) the trial court erred in failing to instruct the jury to view the testimony of an accomplice with caution; and (3) under section 12022.53, subdivision (f), only one firearm sentencing enhancement may be imposed.
FACTS AND PROCEDURAL BACKGROUND
Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On November 20, 2004, at 4:20 p.m., Edwards was working at Holmes Auto Body Shop. Edwards was talking to Renard Goudeau (Renard), a customer who had arrived to pick up his car, when three people in a black car with white doors slowly drove by. Edwards testified that as Renard saw the people in the car, he threw his hood over his head and became really nervous. With his back slightly turned away from the men in the car, Edwards continued talking to Renard. Edwards was shot twice in the legs and heard at least five gunshots. Edwards got a good look at the shooter, whom he subsequently identified as appellant. Edwards testified that appellant shot at them while seated on the rolled down passenger window, with his hands extended over the car roof, and his legs inside the car. Edwards stated that he had seen appellant 10 times and had heard others call him Mookie.
Within minutes after Edwards was shot, the paramedics arrived. Los Angeles Police Department Officer Tim Galli found a spent bullet two feet away from where Edwards was lying.
On that same day, Los Angeles Police Department Officers Kevin Raines and Oscar Gutierrez were traveling westbound on 54th Street approaching Holmes Avenue. The officers noticed three men in a 1986 black Buick Regal with white doors approaching 54th Street, traveling northbound. The driver and the front passenger looked in the direction of the officers. The driver sped up, causing the tires to spin, and made a quick left turn onto 54th Street. The officers followed the car until the driver pulled over abruptly and stopped. Appellant, the right rear passenger, left the car through the front door of the two-door vehicle and ran to the Pueblo Del Rio housing project. The driver, Philip Blanton (Philip), and the front passenger, Philips brother Frederick Blanton (Frederick), jumped out of the car with their hands up, yelling We didnt do nothing, Officer. We just came from work. The officers did not apprehend appellant at that time.
Officer Gutierrez recovered a revolver from the right front seat of the Buick. The revolver contained three live rounds and three expended casings. At trial, the parties stipulated that the cartridge casings and the recovered spent bullet were discharged from the revolver. The left index fingerprint of appellant, who writes with his left hand, matched the latent fingerprint found in the area behind the trigger of the revolver. On February 10, 2005, Edwards initialed and dated a photograph of appellant from a gang book, indicating in writing that appellant was the shooter. Edwards also identified appellant at trial.
Los Angeles Police Department Officer Rudy Villarreal, a gang expert, testified that he was assigned to monitor the Pueblo Bishop Bloods (Pueblo), Bloodstone Villains, 38th Street, Barrio Mojados, and the Four Treys gangs. The Pueblo gang, which has 230 members, has its main headquarters located at the Pueblo Del Rio housing project. The gangs criminal activities include murder, robbery, grand theft auto, drug sales, and weapons possession. Appellant, who goes by the gang moniker Spooky or Mookie, is a Pueblo gang member. Appellant has a P for Pueblo, tattooed on his right arm, and a B for Bishop, on his left arm. Officer Villareal testified that Philip and Frederick are also members of the Pueblo gang. Holmes Auto Body Shop was within the claimed territory of the Pueblo gang.
The approximately 150 members of the Bloodstone Villains claim an area west of the Pueblo gangs area. The Bloodstone Villains and the Pueblo gang have been mortal enemies since a Pueblo gang member killed a Bloodstone Villains gang member execution-style over a bad narcotics transaction in 1998.
Renard is not a member of the Bloodstone Villains, but strongly resembles his brother Reneal Goudeau (Reneal), who is a member of the Bloodstone Villains. The first time Officer Villareal talked to Renard, he initially believed he was speaking to Reneal. Reneal, but not Renard, has Bloodstone Villains tattoos. In Officer Villarreals opinion, appellant committed a drive-by shooting to further criminal activity of the Pueblo gang because: the shooting was committed inside the Pueblo gang territory; appellant was in the company of other Pueblo gang members; appellant shot at someone he perceived as a threat or an enemy; appellant fled to the Pueblo Del Rio housing project; and Renard appeared to be threatened by and fearful of, the Pueblo gang members. Officer Villarreal also opined that appellant could have shot at Renard in order to prove himself to older gang members.
Philip, appellants codefendant, testified in his own defense that on November 20, 2004, he and his brother were leaving their place of employment in Gardena to visit their grandmother who lived in the Pueblo Del Rio housing project. He denied that he and his brother were members of the Pueblo gang. As he was driving, he saw appellant, whom he knew as Marquis, waving him down. He did not know that appellant had a handgun. Philip gave appellant a ride to Holmes Auto Body Shop because appellant told him that he wanted to check out a car there. As he slowed down by the body shop, appellant got out of the car, leaned over the hood, and fired two shots. Philip heard people shouting, and was frightened because he did not know if shots were being fired at him. He drove to the Pueblo Del Rio housing project and told appellant to get out of the car. Philip stopped when he noticed a police car following him. Appellant jumped out of the car, and Philip saw a gun on the car seat. Philip and his brother got out of the car with their hands up. Philip told the police that appellant had shot at some men sitting on the corner.
I. Whether there was sufficient evidence to support appellants conviction for attempted murder of Edwards. Or, alternatively, whether the trial court gave an erroneous instruction; the prosecutor made an improper argument, to which appellants counsels failure to object requires reversal
A. The evidence was sufficient to support appellants conviction for attempted murder
Appellant contends that there was insufficient evidence to support his conviction for the attempted murder of Edwards because there was no evidence that appellant wanted to kill Edwards. We disagree.
In determining whether sufficient evidence exists to support the verdict, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)
A judgment will not be reversed for insufficiency unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The crime of attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Swain (1996) 12 Cal.4th 593, 604-605.) The defendant must harbor express malice in the form of the intent to kill the victim. (People v.Smith (2005) 37 Cal.4th 733, 739 (Smith).) Intent to kill is shown if the defendant either desires the death of the victim or knows to a substantial certainty that the death will occur as a result of the defendants action. (Ibid.) With respect to murder, if the defendant does not kill his intended victim, but kills another, his intent to kill the target transfers to the deceased victim. (Id. at p. 740.) Our Supreme Court held that the doctrine of transferred intent does not apply where a defendant fails to kill either victim and is charged with attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 330.) Instead, [t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. (Id. at p. 328.)
Because there rarely is direct evidence of the defendants intent, the intent must be derived from all the circumstances of the attempt, including the defendants actions. (Smith, supra, 37 Cal.4th at p. 741.) Thus, an inference of intent may be drawn from evidence of a purposeful firing of a lethal weapon at another human being at close range, without legal excuse. (Id. at pp. 741-742.) In Smith, the defendant shot at his former girlfriend as she was driving away from him with her boyfriend and her baby. The defendant was convicted of attempted murder of the woman and the baby. Our Supreme Court held that the jury could conclude that the defendant intended to kill the baby because he purposefully shot into the vehicle at close range, while the mother and child were seated in the car, one behind the other, directly in his line of fire. (Id. at pp. 743-745.) That is, the defendant shot into the vehicle with a deliberate intent to unlawfully take away the babys life, or knew that the shooting would, to a substantial certainty, result in the babys death. (Id. at p. 743; see also People v. Chinchilla (1997) 52 Cal.App.4th 683, 690-691 [where the defendant fired a bullet at two officers, a reasonable jury could infer that the defendant intended to kill both].)
Moreover, under the kill zone theory set forth in People v. Bland, supra, 28 Cal.4th at pages 329-330, the factfinder can find that the defendant may have had the intent to kill multiple victims by employing means that create a zone of risk around the targeted victim. The intent is deemed concurrent when the nature of the attack, while directed at the primary victim, is such that the factfinder can conclude that the defendant intended to ensure harm to the primary victim by harming everyone in the vicinity. (Ibid.) In other words, the means employed by the defendant created a zone of harm around the victim, so that the factfinder can infer that the defendant intended to harm all in the zone. (Id. at p. 331, fn. 6.)
Here, Edwards and Renard were standing close together when appellant shot at them several times. Edwards was inches from Renard, was visible to appellant, and was in appellants direct line of fire. Thus, the evidence tended to show that appellant had a deliberate intent to take Edwards life or knew that the shooting would, to a substantial certainty, result in his death. Moreover, while the evidence supports the inference that appellants primary target was Renard, whom he may have mistaken for rival gang member Reneal, Edwards was within a zone of risk when appellant fired multiple shots at them. Accordingly, the jury could conclude that appellant had the concurrent intent to kill Edwards as well as Renard.
Nevertheless, appellant urges that he had no motive to kill Edwards, who, without citation to authority, he claims is the uncle of a fellow Pueblo gang member. He also refers to preliminary hearing testimony to support his argument that appellant had meant to shoot only a Bloodstone Villains. However, in reviewing a sufficiency of evidence claim, the court must review the evidence presented to the trier of fact (People v. Maury (2003) 30 Cal.4th 342, 403) and not evidence from the preliminary hearing, which appellant acknowledges was not admitted at trial. Motive of the defendant while sometimes enlightening is not essential to prove intent to kill. Furthermore, we are not convinced by appellants attempt to distinguish People v. Bland, supra, 28 Cal.4th 313; Smith, supra, 37 Cal.4th 733; and People v. Anzalone (2006) 141 Cal.App.4th 380on the basis that in those cases, a kill zone existed because the victims were confined in vehicles. As stated in People v. Bland, supra, 28 Cal.4th at page 330, a kill zone can exist where the defendant drives by a group of people and attacks them with automatic weapon fire or an explosive device sufficient to kill everyone in the group. And, in People v. Anzalone, supra, 141 Cal.App.4th at page 390, the victims were gathered around, not seated inside, a car that the defendant had attempted to steal. Accordingly, appellants distinction on the basis that Edwards and Renard were not confined in a vehicle does not assist him.
We conclude that substantial evidence supports the jurys finding that appellant intended to kill Edwards.
B. Whether the trial court properly instructed with CALJIC No. 8.66.1
We disagree with appellants next argument that because the evidence showed that appellant did not intend to kill Edwards the trial court erred in instructing the jury with CALJIC No. 8.66.1.
The trial court must instruct on general principles of law governing the case that are closely and openly connected with evidence presented at trial, and upon every theory supported by substantial evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530; People v. Ervin (2000) 22 Cal.4th 48, 90.) The court need not give the requested instruction where the supporting evidence is minimal and insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
We first note that appellant did not object to the instruction at trial, and his failure to do so is a waiver of his claim of error. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [failure to object to instruction is a waiver unless the claimed error resulted in a miscarriage of justice such that it is reasonably probable that the defendant would have obtained a more favorable result in the absence of the error].)
In any event, CALJIC No. 8.66.1 accurately reflects the law of concurrent intent to kill as stated in People v.Bland, supra, 28 Cal.4th at pages 330-331, and was properly given. We disagree with appellants argument that the instruction permitted the jury to find that appellant could be guilty of the attempted murder of Edwards even though the evidence showed he never intended to kill Edwards, who just happened to be in the wrong place at the wrong time. Rather, the instruction informed the jury that the shooter may primarily intend to kill one person, and also concurrently intend to kill another when it is reasonable to infer from the nature of the attack that the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. The jury was required to determine whether the perpetrator actually intended to kill the victim. Also, the jury was instructed on the requirement of specific intent in numerous other instructions, and was charged to consider the instructions as a whole pursuant to CALJIC No. 1.01.
Furthermore, the evidence supported the inference that the shooting of Edwards was an intentional, and not, as appellant claims, an accidental act. Appellant belonged to the Pueblo gang, a sworn enemy of the Bloodstone Villains, the gang to which Renards brother belonged. Officer Villareal testified that gang members will shoot members of rival gangs who they believe are encroaching upon their territory. Appellant told Philip to drive to the body shop, which was in the Pueblo gang territory, asked him to slow down, took out his gun, leaned over the hood of the car, and fired several shots at Renard, who resembled Reneal, and Edwards, while they were standing together and talking. The evidence supports the inference that Renard was the primary victim, and that appellant intended to kill the primary victim by killing everyone in that victims vicinity.
We conclude that the trial court did not err in instructing the jury with CALJIC No. 8.66.1.
C. Whether the prosecutor conducted misconduct
Appellant next urges that the People committed prosecutorial misconduct by suggesting that appellant could be convicted of attempting to murder Edwards even though the shooting was an accident. We disagree.
First, appellant did not object to the Peoples argument, and that claim is waived for failure to object. (People v.Ochoa (1998) 19 Cal.4th 353, 431 [claim for prosecutorial misconduct must be rejected on appeal if a timely objection and admonition would have cured the potential harm].)
Appellants argument that an objection would have been futile because the trial court had already instructed the jury on CALJIC No. 8.66.1 presupposes that the instruction was erroneously given. As previously discussed, that instruction accurately sets forth the doctrine of concurrent intent, requiring a finding of specific intent to murder on the part of appellant.
Moreover, when viewed in context, the Peoples argument was not improper. In support of his argument that the People improperly suggested that appellant could be convicted of attempted murder even if the victims were shot by accident, appellant points to the Peoples comments that most of the time the intended target is supposed to be a gang member but a lot of the times they think its a gang member or they accidentally shoot somebody else which is exactly what happened in this case.
However, our review of the record reveals that the complained of comment was made after the People had argued that the elements of attempted willful, premeditated murder existed. The excerpted comment was made in the context of the special allegations. With respect to the requirements of a direct but ineffectual act toward killing another human being, and the specific intent to kill, the People argued that appellant had the intent to kill Edwards when he pointed the gun at him and fired. The People urged that the gun was pointed directly at Edwards and Renard, and appellant fired the shots to kill them and not to scare them. The People then discussed corroborating and identification evidence, and finally the special allegations. The People argued: And you will see that that is clearly done with the specific intent to promote, further and assist their gang because they are protecting their turf. That is their hood, their area.At that point, the People then made the comment of which appellant complains. The reference to accidental shootings may have been an explanation of the expert witnesss testimony that a gang member would shoot a nongang member in order to promote activities of the gang, or that the accident was a mistake in the identity of the targeted victim, and not an exposition on the intent required for attempted murder.
Thus, under the circumstances, there is no reasonable likelihood the jury understood or applied the complained of comments in an improper or erroneous manner. (People v.Frye (1998) 18 Cal.4th 894, 970 [to prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury erroneously applied the improper comments].)
Finally, appellants citation to People v.Anzalone, supra, 141 Cal.App.4th at page 393 for the proposition that the Peoples argument misstated the law does not assist him. In that case, unlike here, the trial court did not give CALJIC No. 8.66.1, and the Peoples argument regarding the zone of danger was inaccurate and misleading. (People v.Anzalone, supra, atp. 392.)
We reject appellants claims that he received ineffective assistance of counsel because his counsel did not object to CALJIC No. 8.66.1 or to the Peoples suggestion that appellant could be convicted of attempted murder based on an accidental shooting. As previously discussed, the trial courts instruction on CALJIC No. 8.66.1 and the Peoples argument were proper. Therefore, appellants counsels performance was not deficient based on his failure to object. (Strickland v. Washington (1984) 466 U.S. 668, 686 [in order to succeed on a claim of ineffective assistance of counsel, the defendant must show that his or her counsels representation fell below an objective standard of reasonableness, such that there is a reasonable probability that but for counsels unprofessional errors, the result of the proceeding would have been different].)
Moreover, the evidence was overwhelming that appellant attempted to kill Edwards, and it is not reasonably probable that appellant would have obtained a more favorable result absent the complained of comments by the People or the failure to object by appellants counsel. (People v.Frye, supra, 18 Cal.4th at p. 970.)
II. Whether the trial court had a sua sponte duty to give a cautionary instruction regarding accomplice testimony
Relying on People v. Guiuan (1998) 18 Cal.4th 558 (Guiuan), appellant complains that the trial court erred in failing to sua sponte instruct the jury with CALJIC No. 3.18, which admonishes the jury to view accomplice testimony that tends to incriminate a defendant with caution. Appellant is incorrect.
In Guiuan, our Supreme Court held that regardless of which party calls the accomplice, the jury should be instructed to view accomplice testimony that tends to incriminate the defendant with caution, whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies. (Guiuan, supra, 18 Cal.4th at p. 569.) Subsequently, People v. Box(2000) 23 Cal.4th 1153, 1209 (Box)clarified that such an instruction is required when requested by the defendant because the codefendants testimony will promote his own self-interest by inculpating the defendant. (Id. at p. 1209, citing People v. Alvarez (1996) 14 Cal.4th 155, 217-219 [trial court has authority to instruct the jury to view the testimony of the accomplice/defendant with distrust because such a defendant has the motive, opportunity, and means to help himself at the others expense].)
However, as declared in People v. Smith (2005) 135 Cal.App.4th 914, 928, which neither appellant nor the People cite, Guiuan and Box have not disturbed the longstanding rule that an accomplice instruction need not be given sua sponte when the testifying accomplice is a codefendant. [Citations.]
Accordingly, the trial court did not err in failing to sua sponte instruct the jury with CALJIC No. 3.18.
Moreover, the absence of the instruction did not prejudice appellant because the jury was aware that both appellant and Philip were at the scene of the crime and Philip had the motivation to blame appellant. And, Philips testimony was corroborated by evidence of appellants fingerprint on the gun and the testimony of Edwards and other witnesses. (Box, supra, 23 Cal.4th at p. 1209 [no prejudice if jury aware of accomplices motives, both defendant and codefendant were at the crime scene, and physical and testimonial corroboration existed].) Also, since there was no reasonable probability that but for appellants counsels failure to request the instruction, the result of the proceeding would have been different, appellant cannot succeed on his claim of ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 686.)
III. Whether the trial court erred in imposing and staying the firearm enhancement
Appellant next contends that the trial court erred in imposing and staying the firearm enhancement under sections 12022.53, subdivisions (b), (c), and (d). In People v.Bracamonte (2003) 106 Cal.App.4th 704, Division 4 of this district discussed the conflict between section 12022.53, subdivisions (f) and (h). Subdivision (f) states that only one enhancement may be imposed under section 12022.53, but subdivision (h) prohibits striking any enhancement imposed under section 12022.53. Harmonizing the two sections, the Bracamonte court held that each section 12022.53 enhancement should be imposed with a stay of execution for all but the enhancement with the greatest term of imprisonment. (Bracamonte, at p. 713.) Division 7 of this district followed the reasoning of Bracamonte in People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062, while the Third Appellate District disagreed with Bracamonte in a recently published opinion, People v.Gonzalez (2006) 146 Cal.App.4th 327.
We also agree with the holding of Bracamonte and conclude that the trial court correctly imposed the applicable enhancement for each firearm discharge and use allegation found true under section 12022.53, and then stayed the execution of all such enhancements except the one providing for the longest prison term.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, Acting P. J.
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 All further statutory references are to the Penal Code unless otherwise stated.
 CALJIC No. 8.66.1 states: A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the kill zone.] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [kill zone] [zone of risk] is an issue to be decided by you.
 The jury was instructed with CALJIC No. 8.66, which defines an attempt as acts clearly indicating a certain, unambiguous intent to kill, and CALJIC No. 3.31 requiring specific intent in the mind of the perpetrator.
 The People stated: So clearly you are not trying just to scare somebody by pointing a gun and firing it into the air. That gun was pointed directly at those two individuals standing on that corner in front of Holmes Auto Body Shop and that person was indeed shot. There is no doubt here that those shots were meant to kill somebody. They werent meant to just scare somebody, but it was an ineffectual act. It was an act that was done to kill them, but it was ineffectual. And there is no doubt it was a direct act. It was pointed at those individuals. The gun was in that direction and it hit Mr. Edwards but they didnt kill him. That was an ineffectual act. So that is what you have for the attempted murder.
 The People stated: And you will see that that is clearly done with the specific intent to promote, further and assist their gang because they are protecting their turf. That is their hood, their area. Bloodstone Villains dont belong in Pueblo Bishops. Strangers dont belong in Pueblo Bishop territory. You even heard the officer testify. Two officers undercover are hanging out at Pueblo Del Rio. They look like regular people. They are undercover cops and they get shot at because they are people that shouldnt have been in Pueblo Bishop territory and that is why they got shot at. That is what gangs do. That is what they do. They protect their turf. And [sic] doesnt matter whether you are a rival gang member, whether you are not supposed to be there, whether they think you are a rival gang member or they think you are some Joe Blow on the street that shouldnt be in their turf. You even heard the defense expert say most of the cases, the drive-by shootings when I asked him specifically about a drive-by shooting, this isnt a robbery case, isnt a dope sale case. I asked the defense expert specifically about drive-by shootings and he said well, yeah, most of the time the intended target is supposed to be a gang member but a lot of the times they think its a gang member or they accidentally shoot somebody else which is exactly what happened in this case.
 CALJIC No. 3.18 provides: To the extent that an accomplice gives testimony that tends to incriminate a defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.
 Section 12022.53, subdivision (f) provides: Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). On the other hand, subdivision (h) of section 12022.53 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.
 In his opening brief, appellant referred to a previously published version of People v. Gonzalez, which is not citable because rehearing was granted on September 22, 2006. (Cal. Rules of Court, rules 8.1105, 8.1115, 8.1125.)