California Firearm Sentencing Enhancements
In People v. Gonzalez (2008) 43 Cal.4th 1118, held that after a sentencing court imposes the longest possible term of punishment for a Penal Code section 12022.53 firearm enhancement, it should impose and then stay any remaining firearm enhancements under section 12022.53 or section 12022.5 for the same crime.
Section 12022.5, subdivision (a) provides sentence enhancements of three, four or 10 years for the personal use of a firearm in the commission or attempted commission of any felony. Section 12022.53 provides for increasing and consecutive punishment on the use of a firearm in the commission of the enumerated felonies. Subdivision (c) provides for a 20-year term if the defendant "personally and intentionally discharges a firearm." ( 12022.53, subd. (c).) Subdivision (d) provides for a 25-year-to-life term if the intentional discharge of the firearm caused "great bodily injury" or "death, to any person other than an accomplice." ( 12022.53, subd. (d).)
Subdivision (f) of section 12022.53 addresses the situation when there are multiple firearm enhancements found true by a jury. In relevant part, 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 . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section." Subdivision (h) of section 12022.53 provides that, "nothwithstanding 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." Section 12022.5, subdivision (c) contains language identical to section 12022.53, subdivision (h).
In Gonzalez, supra, 43 Cal.4th 1118, 1125, the court noted the term "imposed" could mean either "imposed and then executed" or "imposed and then stayed" but the statutory language indicated the term "imposed" was intended in the former sense, that is, as "imposed and then executed." As so interpreted, subdivision (f) of section 12022.53, "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, at p. 1127.)
The court found than an interpretation that subdivision (f) of section 12022.53 required a court to strike, rather than stay, the prohibited firearm enhancements, would " 'disserve the public safety policy that . . . underlies the legislative intent reflected in the statute' , by making it more difficult, if not impossible, to impose and execute the term of imprisonment for an initially prohibited firearm enhancement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal." (Gonzalez, at p. 1128.)
The court also noted its interpretation of section 12022.53, subdivision (f) "harmonizes section 12022.53 with the rationale underlying both section 654 and the Judicial Council's general rule that sets forth the procedure courts should follow when pronouncing sentence on any prohibited enhancement. (Cal. Rules of Court, rule 4.447.)" (Gonzalez, supra, 43 Cal.4th 1118, 1128.)
Under the California Rules of Court, rule 4.447 "no finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent upon the defendant's service of the portion of the sentence not stayed."
The Advisory Committee explained the rationale for staying execution was "to avoid violating a statutory prohibition or exceeding the statutory maximum, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence" and cited in support People v. Niles (1964) 227 Cal.App.2d 749, 756. (Advisory Com. com., former rule 447, Deering's Ann. Code, Rules (1999 ed.) foll. rule 447, p. 220.)
The Supreme Court noted in Gonzalez, supra, 43 Cal.4th 1118, 1129, that the Niles case "discussed the analogous rationale underlying section 654," concluding that staying punishment for a conviction under that section was the only possible " 'reconciliation of the various policies involved. Any other method either incurs the risk of letting a defendant escape altogether, or else imposes an unnecessary burden on an appellate court and on the trial court on the inevitable remand for correction of sentence.' " (Ibid., quoting People v. Niles, supra, 227 Cal.App.2d at p. 756.)
The legislative history indicated the statute "was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, rather than strike, prohibited punishment under section 12022.53." (Gonzalez, supra, 43 Cal.4th 1118, 1129.)
The Gonzalez court concluded that staying, rather than striking, the prohibited firearm enhancements, "serves the legislative goals of section 12022.53 by making the prohibited enhancements readily available should the section 12022.53 enhancement with the longest term be found invalid on appeal."
Further, staying the prohibited enhancements makes it clear that the trial court's intent is to stay a prohibited enhancement rather to exercise its discretion to strike an enhancement under section 1385. (Gonzalez, at p. 1129.)