California Penal Code Section 12022.53 - Interpretation
In People v. Martinez (1999) 76 Cal. App. 4th 489, the defendant argued that the firearm enhancement under section 12022.53 constituted cruel and unusual punishment in violation of the federal and state Constitutions. the Martinez court disagreed, concluding that the ease with which a victim of one of the serious felonies listed in section 12022.53, could be killed or injured by means of a firearm supported a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means. People v. Martinez, supra, 76 Cal. App. 4th at page 497.
the Martinez court noted that, in evaluating the constitutionality of a statute, "The judicial inquiry commences with great deference to the Legislature.
Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches." People v. Martinez, supra, 76 Cal. App. 4th at page 494.
The Martinez court went on to explain that "section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes.
The section is limited, in the first place, to convictions of certain very serious felonies.
The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant's intentional discharge of the firearm proximately caused great bodily injury.
Furthermore, the provision in question is an enhancement to the base term for the underlying conviction; a trial court retains flexibility as to fixing the underlying base term for attempted murder." People v. Martinez, supra, 76 Cal. App. 4th at page 495.
In People v. Palacios (2007) 41 Cal.4th 720, the Supreme Court held that the section 12022.53 enhancement must be imposed on each qualifying offense and cannot be stayed pursuant to the provisions of 654. (Palacios, at pp. 727-733.)
In Palacios the defendant committed several qualifying offenses but shot at the victim only once, causing serious bodily injury.
The Court of Appeal reasoned that only a single section 12022.53, subdivision (d) enhancement could be imposed because the defendant fired his gun only once.
The Supreme Court disagreed and remanded to permit the trial court to impose the enhancement for each qualifying offense.
The appellate court instructed the trial court to stay imposition of the section 12022.53, subdivision (d) enhancements that were attached to the two kidnapping convictions.
The Supreme Court granted review and found that sentence enhancements under section 12022.53, subdivision (d) are not limited by the multiple punishment prohibition of section 654. the Supreme Court found that "in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (People v. Palacios, supra, 41 Cal.4th at pp. 727-728.)
The Supreme Court remanded the matter to the court with instructions to reinstate the 25-years-to-life terms imposed for the section 12022.53, subdivision (d) enhancements appended to the kidnapping for robbery and kidnapping for carjacking convictions. (Palacios, supra, at p. 734.)
The Supreme Court held the sentence enhancement provisions of section 12022.53 are not limited by the multiple punishment prohibition of section 654:
"In enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. . . . the broad and unambiguous scope of 'notwithstanding any other provision of law' overrides the application, if any, of section 654 to the imposition of punishment prescribed in section 12022.53, subdivisions (b), (c) and (d)." (Palacios, at pp. 726-728.)
The precise question decided by the Supreme Court in People v. Palacios, supra, 41 Cal.4th 720, was whether section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes.
Indeed, the Palacios Court anticipated, and then specifically rejected, the very argument Sanchez now advances: "Offenses for which the subdivision (d) enhancement is applicable include section 246, discharging a firearm at certain occupied structures, and section 12034, subdivisions (c) and (d), discharging a firearm from a vehicle.
These offenses necessarily involve the use of a firearm and section 12022.53 expressly provides for a firearm use enhancement. by including these offenses and providing that its enhancements apply 'notwithstanding any other provision of law,' the Legislature made clear its intention that section 654 not apply." (Id. at p. 732)
In People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court explained the meaning of the word "impose" as it applies to sentence enhancements:
"It is important to understand that the word 'impose' applies to enhancements that are 'imposed and then executed' as well as ones that are 'imposed and then stayed. However, as a practical matter, the word "impose" is often employed as shorthand to refer to the first situation, while the word "stay" often refers to the latter.'" (Id. at p. 1125.)
Gonzalez involved multiple firearm enhancements. the issue was "whether, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment as required by the statute, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be stayed or stricken." (Gonzalez, supra, at pp. 1122-1123.)
The court held that the appropriate procedure is to impose the remaining enhancements and then stay their execution. (Gonzalez, supra, 43 Cal.4th at p. 1123.)
In so holding, the court reversed a decision of this court in which we concluded that the remaining firearm enhancements, as well as their findings, must be stricken, rather than imposed and then stayed. (Id. at p. 1124.)
Section 12022.53 provides for "escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies ... ." (Gonzalez, supra, at p. 1124.)
Subdivision (f) of section 12022.53 requires the court to "impose" the enhancement that provides for the longest term of imprisonment, but further provides that only " 'one additional term of imprisonment under this section shall be imposed per person for each crime.' " (Gonzalez, supra, at p. 1125.)
Subdivision (f) further provides that a firearm enhancement specified in section 12022.5 " 'shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.' " (Gonzalez, supra, at p. 1125.)
The Court concluded that because only the enhancement with the longest term of imprisonment may be "imposed" under section 12022.53, it was error to impose and then stay the remaining enhancements; such enhancements should have been stricken.
By doing so, we erroneously "interpreted the word 'imposed' in that portion of subdivision (f) as encompassing both meanings of 'impose,' namely, impose and then execute, as well as impose and then stay." (Gonzalez, supra, 43 Cal.4th at p. 1126.)
As the California Supreme Court explained, section 12022.53, subdivision (f) "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." (43 Cal.4th at p. 1127.)
This interpretation harmonizes the meaning of the word "impose" as used throughout the statute, as well as with rule 4.447 of the California Rules of Court, which provides:
"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. ..." (Cal. Rules of Court, rule 4.447.)
The court further explained that a contrary interpretation would disserve the public policy behind firearm enhancement statutes "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, supra, 43 Cal.4th at p. 1128.)