Gang Enhancement (§ 186.22, subd. (b))

A. Basic Elements and Requirements

Subdivision (b) of section 186.22 defines, not a stand-alone offense like subdivision (a), but a sentencing enhancement which applies where the defendant committed the felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."

Application and Elements (Note: this outline separates cases involving the sufficiency of the evidence and the admissibility of the evidence. When considering one area, be sure to look to the other, particularly when considering expert testimony. The cases in the two areas touch on very closely-related concerns and often reference each other.)
  1. This enhancement applies even in the absence of active or current participation in a gang. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207.)

  2. The term "criminal street gang" is discussed in the definition section.

  3. Gang membership not required. (People v. Bragg (2008) 161 Cal.App.4th 1385.)

B. Application

  1. In People v. Albillar (2010) 51 Cal.4th 47 the Supreme Court elaborated in detail on the meaning of the two elements of the enhancement - the "for the benefit of ..." element and the "specific intent" element. 

    1. "for the benefit of, at the direction of, or in association with any criminal street gang"

      1. Offense Must be Gang-Related; Not All Offenses by Gang Members are Gang-Related. The gang enhancements only apply if the offense is "gang related," but not all offenses by gang members are gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 60.) "'[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.'" (Id. at 62 (quoting People v. Morales (2003) 112 Cal.App.4th 1176, 1198).) 

      2. In Albillar, the Court found the offenses gang-related because they were committed in association with gang members and for the benefit of a gang. (Id. at 60.) [Note: Albillar briefs here.] 

        1. Sexual assaults committed by two brothers and a cousin in their home were committed in association with their gang where they "not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together. They relied on the gang's internal code to ensure that none of them would cooperate with the police and on the gang's reputation to ensure that the victim did not contact the police." (Albillar, 51 Cal.4th at 61-62.) 

        2. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Id.at 63.) 

    2. "specific intent to promote, further, or assist in any criminal conduct by gang members"

      1. The intent can relate to "any criminal conduct," even the conduct underlying the charged offense. In Albillar, the Court held that "the scienter requirement in section 186.22(b)(1)—i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, 51 Cal.4th at 66.) In so holding, the California Supreme Court rejected the Ninth Circuit's interpretation of the statute in Briceno v. Scribner (9th Cir.2009) 555 F.3d 1069, 1078-1079 and Garcia v. Carey (9th Cir.2005) 395 F.3d 1099, 1102-1104. (Id. at 65-66.)

      2. The intent need only relate to promoting, etc. criminal conduct by gang members; prosecutor need not show intent to promote "a gang." "There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Albillar, 51 Cal.4th at 67.) The constitutional requirement of personal guilt does not compel a requirement of specific intent to aid the gang. (Id.)

      3. Albillar's broadly-worded conclusion: "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at 68.) In Albillar, the specific intent element was thus satisfied by evidence that (1) the defendants intended to attack the victim; (2) they assisted each other in raping her; and (3) each perpetrator was the member of a criminal street gang. (Id.)

    3. Is Expert Testimony Sufficient by Itself to Prove For-the-Benefit and "Specific Intent" Elements? IAlbillar, 51 Cal.4th at 63. the Court stated that "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang' within the meaning of section 186.22(b)(1)." 

  2. Post-Albillar Cases - Evidence Sufficient

    1. Where minors threw gangs signs to challenge rivals to a fight, the specific intent was established because the fact-finder could reasonably conclude "they wanted to enhance [the] gang's violent reputation and thereby further future criminal conduct by their Poor Side Chicos gang member friends." (In re Cesar V. (2011) 192 Cal.App.4th 989, 1000.) The prosecution was not required to prove what specific criminal conduct the defendants were seeking to promote. (Id.) [Note: In re Cesar V. involved subdivision (d), the alternative sentencing scheme which has the same elements as the subdivision (b) enhancement.) 

    2. Evidence to support benefit/direction/association element was sufficient. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1260-1262.) (In Galvez, appellant conceded there was sufficient evidence for the intent element. (Id. at 1260.)) In Galvez, the defendant and his co-gang members assaulted an off-duty sheriff's deputy attempting to use his cell phone to call 911 to report an assault he had just witnessed the defendant and the others commit. As they fled, one of the gang members took the deputy's cell phone. The Court of Appeal found that sufficient evidence support the finding that the robbery, witness-dissuasion, and assault were committed in association with the gang because appellant relied on his common gang membership with the others and the apparatus of the gang to commit the offenses. (Id. at 1261.) The court also found the offense were committed for the benefit of the gang because act of the beating the victim in public promotes fear, which promotes the gang. (Id.) Finally, regarding the argument that a gang expert's testimony alone is insufficient to find an offense gang-related, the Court noted that there was evidentiary support for the expert's testimony and the Court the statement in Albillar that expert opinion can be sufficient to raise an inference that the offense was committed for the benefit of a gang. (Id. at 1261-1262.)

    3. Evidence was sufficient to find that defendant committed offenses of conviction (attempted murder, robbery, possession of a firearm, assault with a firearm) were for the benefit of the defendant's gang (membership undisputed) where, prior to shooting, co-perpetrator/co-gang member asked victim where he was from and announced his own gang membership. (People v. Miranda (2011) 192 Cal.App.4th 398, 411-413.)

    4. Evidence was sufficient to establish robbery was committed in association or at direction of gang where (1) defendant admitted he and companion, who was three years older, came together to commit the robbery, defendant had not previously been a driver in a robbery, companion directed defendant to drive to fast food restaurant, and (2) expert testified that the companion had extensive history of having guns and committing robberies and assaults, that more experienced gang members direct operation of robberies and commit actual robbery while less experienced gang member would drive the car. (People v. Hunt (2011) 196 Cal.App.4th 811, 818-822, esp. 820-21.)

    5. Evidence was sufficient to find possession of a gun was gang related where, in response to an officer's question as to why he possessed it, the defendant answered that a rival gang was "out to get us" and "protection for us." (People v. Gonzales (2011) 199 Cal.App.4th 219, 234.) 

  3. Post-Albillar Cases - Evidence Insufficient

    1. People v. Gonzales (2011) 199 Cal.App.4th 219, 233-234: court of appeal agreed with defendant that his possession of methamphetamine was not gang related: "Gonzales was convicted of possession for use and was acquitted of possession for sale. There was no evidence Gonzales purchased or possessed the methamphetamine “for the benefit of, at the direction of, or in association with” Big Stanton." (The court, however, found the same defendant's gun possession gang-related within the meaning of subdivision (b).) 

    2. In re Daniel C. (2011) 195 Cal.App.4th 1350

      1. Substantial evidence supported finding that offense was committed "in association with" criminal street gang where "appellant was accompanied by an admitted Norteño member ... who appellant knew was associated with the gang, as well as another young man ... characterized as a Norteño affiliate by the prosecution's expert. In addition, appellant and all of his companions wore clothing with the Norteño color on it." (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359.) However, the evidence was insufficient to support a finding that the supermarket robbery was committed with the specific intent to promote, further or assist criminal conduct by gang members: "there is no evidence that he acted in concert with his companions. Appellant's companions left the store before he picked up the liquor bottle, and they did not assist him in assaulting [the assistant store manager]. Indeed, there is no evidence in the record that appellant's companions even saw what happened in the store after they left. Moreover, there is no evidence that [the assistant manager] was aware that appellant, or his companions who had been in the store earlier, were gang members or 'affiliates.'" (Id. at 1361.) 

      2. The Court in Daniel C. distinguished Albillar and People v. Morales (2003) 112 Cal.App.4th 1176, on the grounds that in those cases there was evidence that the co-gang members committed crimes in connection with the defendant crimes. (Id. at 1362.) 

      3. The Court in Daniel C., relying on In re Frank S. (2006) 141 Cal.App.4th 1192, found the gang expert's opinion unsupported by the facts.    The expert opined that the robbery was committed to further the interests of the gang because it was a violent crime and gangs commit violent crimes to gain respect and intimidate others. (In re Daniel C., 195 Cal.App.4th at 1363.) This expert opinion was not supported by the facts of the case because there was no evidence that appellant or the others entered the store with the intent to commit a violent crime, the record showed that appellant planned only to take a liquor bottle and leave without paying for it, and the assault was a spur-of-the-moment reaction to the store employee attempting to grab the bottle back. (Id.at 1363-1365.) 

  4. Pre-Albillar Cases - Evidence Insufficient.

    1. People v. Ramon (2009) 175 Cal.App.4th 843 and In re Frank S. (2006) 141 Cal.App.4th 1192, the Fifth District---relying on its earlier decision in People v. Killebrew (2002) 103 Cal.App.4th 644 (an admissibility of evidence case)---the Fifth District found expert opinion insufficient to support gang enhancements.

    2. In Ramon, the prosecutor failed to prove the receiving-stolen-property offense and various firearm offenses were committed for benefit of gang and with required specific intent where defendant and fellow gang member were stopped in gang territory in stolen truck with handgun under the driver's seat. Expert's opinion---which the court found to be an "improper opinion" and insufficient to justify the enhancement---was based on (1) the defendants belonging to the same gang; (2) being in that gang's territory when they were stopped; and (3) the nature of the crimes. (People v. Ramon (2009) 175 Cal.App.4th 843.) The Court of Appeal in Ramon distinguished one case in which the expert opinion was supplemented with the defendant's admission to being the member of one gang and getting permission from another gang to sell drugs at a specified location (People v. Ferraez (2003) 112 Cal.App.4th 925) and another case in which the motive was at issue and the expert opinion was augmented by the evidence that the defendant asked the victim "'where are you from'" immediately before shooting him (People v. Zepeda (2001) 87 Cal.App.4th 1183). (Ramon, 175 Cal.App.4th at 852-853.)

    3. In People v. Ochoa (2009) 179 Cal.App.4th 650, 661, Fn.6, the Court of Appeal criticized Ramon, explaining that the specific intent requires only that the defendant promote criminal conduct by gang members, not that he promote criminal activity by a gang. In Ochoa, the Court, although critical of Ramon, found the gang enhancement was not supported by substantial evidence. (179 Cal.App.4th at 663.) "The sergeant's testimony, as to how defendant's crimes would benefit Moreno Valley 13, was based solely on speculation, not evidence. An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition. [Citations.]" (Id.) "The gang enhancement cannot be sustained based solely on the defendant's status as a member of the gang and his subsequent commission of crimes." (Id.)

  5. Pre-Albillar Cases - Evidence Sufficient

    1. People v. Morales (2003) 112 Cal.App.4th 1176: evidence of both elements found sufficient. D, who had gang tattoos, entered a home with two gang members, robbed his potential meth customer at gunpoint, while other gang members robbed two other men in the house and shot one of them to death. (Id. at 1182-83.)  As to the benefit/direction/association element, the Court found, under these facts, "the jury could reasonably infer the requisite association from the very fact that [the] defendant committed the charged crimes in association with fellow gang members."  (Id. at 1198.) The intent to assist other gang members was also sufficiently proved. "There was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, as we held in part IV, ante, there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Id. at 1198.) 

  6. CALCRIM 1401 Held Adequate. CALCRIM no. 1401 adequately defines the intent element by requiring that "[t]he defendant intended to assist, further, or promote criminal conduct by gang members." The omission of the word "specific" from the definition does not establish that the instruction inadequately defines the "specific intent." (People v. Stallworth (2008) 164 Cal.App.4th 1079, 1104-1105.)

B. Penalty

  1. Enhancing Determinate Terms: when the underlying felony is penalized by a determinate term, then the length of the enhancement is determined by subdivisions (b)(1) or (b)(4).

    1. Basic term: 2, 3 or 4 years consecutive to the felony. (§ 186.22(b)(1)(A).) If on the grounds of, or within 1,000' of, school when school is open or in use by minors, "that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1)." (§ 186.22(b)(2).)

    2. Enhancing a serious felony: additional term of five years. (§ 186.22(b)(1)(B).) Although a felony enhanced under subdivision (b) of section 186.22 is a serious felony under subdivision (c)(28) of section 1192.7 (People v. Briceno (2004) 34 Cal.4th 451, 459, 462; § 1192.7(c)(28) (serious felonies include "any felony offense, which would also constitute a felony violation of Section 186.22")), the additional five-year term under 186.22(b)(1)(B) does not apply merely because the offense is deemed serious under 1192.7(c)(28) (Briceno, 34 Cal.4th at 465; People v. Jones (2009) 47 Cal.4th 566, 575)). 

    3. Enhancing a violent felony: additional term of ten years. (§ 186.22(b)(1)(C).)

    4. When the underlying crime is one of the crimes listed in subdivisions (b)(4)(B) or (C), the penalty is an indeterminate term in state prison with a minimum term consisting of the greater of either:

      1. the usual term for that offence plus any enhancement (§ 186.22(b)(4)(A)); or 

      2. 15 years if the felony is home invasion robbery, carjacking, discharge of a firearm at an inhabited dwelling house (and other targets), or drive-by shooting resulting in GBI or death (§ 186.22(b)(4)(B));

      3. 7 years if the felony is extortion (§ 519) or threats to victims and witness (§ 136.1) (§ 186.22(b)(4)(C)). For purposes of subdivision (b)(4)(C), the 7-years-to-life term does not apply to all convictions for dissuading a witness. Section (b)(4)(C) did not apply where the defendant was convicted of dissuading under 136.1(b)(2), which---unlike 136.1(c)(1)---did not require threats or violence. If the offense does involve threats, the dissuading offense is not sentenced under (b)(4)(C). (People v. Lopez (No. F062740, Filed Aug. 22, 2012) ___ Cal.App.4th ___  .) 

    5. Example under subdivision (b)(4): Where defendant was convicted of a violation of section 246 and had one strike and a 25-to-life gun-use enhancement, the minimum term would be the usual term for the offense and enhancement under (b)(4)(A)---i.e. 56, 60 or 64 years (3, 5, or 7, plus 25-to-life for the gun, all doubled)---because it exceeded the 15-year minimum term provided for under (b)(4)(B). (People v. Sok (2010) 181 Cal.App.4th 88, 95-96.) 

    6. Except as provided in subdivision (b)(4), when the underlying crime is punishable by life in prison, the defendant "shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22(b)(5).) 

    7. No (b)(1) Enhancement When Defendant Sentenced Under (b)(4) or (5). (People v. Louie (2012) 203 Cal.App.4th 388, 395-396 (stayed 5-year enhancement under (b)(1)(B) must be stricken when defendant sentenced to life term under 186.22(b)(4) alternative sentencing scheme); see also People v. Johnson (2003) 109 Cal.App.4th 1230, 1237.)

  2. Enhancing Indeterminate Terms: when the underlying felony is penalized by an indeterminate term, then the defendant must serve a minimum of 15 years prior to parole eligibility. (§ 186.22(b)(5).) 

    1. This is so even when the underlying felony already has a minimum parole eligibility term longer than the 15 years provided for in (b)(5), such that the gang enhancement has no practical effect. (People v. Lopez (2005) 34 Cal.4th 1002, 1006-1007 (holding that the subd. (b)(5) minimum term applies to murder, which is punishable by a term of years to life, thus rejecting state's argument that (b)(5) only applies to straight life terms); see also People v. Johnson (2003) 109 Cal.App.4th 1203, 1238-139; People v. Harper (2003) 109 Cal.App.4th 520; but see People v. Herrera (2001) 88 Cal.App.4th 1353, 1363-1365 (majority holds that life term for first degree murder can be enhanced by a determinate term under (b)(1) because 15-year minimum parole eligibility period under (b)(5) could not supersede the 25-year minimum term for first degree murder).)

    2. Where the underlying offense has a statutory penalty of life with the possibility of parole, section 3046 governs the minimum parole term. But that section requires a person imprisoned for life to serve "[a] term as established pursuant to any other provision of law that establishes a . . . minimum period of confinement under a life sentence before eligibility for parole" if that period exceeds seven years." Accordingly, when a section 186.22(b) allegation is found true and the felony on its own right carries a life sentence, section 186.22(b)(5) governs and a minimum term of 15 years is required. (People v. Campos (2011) 196 Cal.App.4th 438, 447-448 (underlying offense of attempted premeditated murder).)

    3. A sentencing court may not strike the alternative sentencing penalty under subdivision (b)(5) of section 186.22. (People v. Campos (2011) 196 Cal.App.4th 438, 448-454 (underlying offense of attempted premeditated murder).)

      1. Subdivision (g) of section 186.22 authorizes a court to "strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors." Because subdivision (b)(5) describes an alternative penalty provision for felonies---i.e. not an enhancement and not a minimum jail term for misdemeanors---the discretion to strike provided for in subdivision (g) does not authorize the a court to refuse to impose the 15-to-life term required by subdivision (b)(5). (Campos, 196 Cal.App.4th at 448-450.)
      2. Section 1385 does not authorize staying the life term under subdivision (b)(5).

  3. Felonies which are both either serious or violent and punishable by an indeterminate life term.

    1. Where defendant is subject to indeterminate life term under subdivision (b)(4) for a gang-related violation of section 246, 10-year gang enhancement for violent felonies under subdivision (b)(1)(C) of section 186.22 does not apply. (Sok, 181 Cal.App.4th at 95-96.)

    2. Subdivision (b)(5) applies to both straight life-terms and a term-of-years to life such that both are exempted from the 10-year gang enhancement for violent felonies in (b)(1)(C). (People v. Lopez (2005) 34 Cal.4th 1002, 1007.) 

  4. Discretion to Strike Under Penal Code section 1385

    1. Gang Enhancements & Misdemeanor Minimum Jail Sentences May be Stricken Under Section 1385. "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (§ 186.22, subd. (g).) 

    2. Split on Alternative Sentencing Scheme Allegations 

      1. Fourth District, Division 1: A sentencing to court may not strike the alternative sentencing penalty under subdivision (b)(5) of section 186.22. (People v. Campos (2011) 196 Cal.App.4th 438, 448-454 (underlying offense of attempted premeditated murder).)

        1. Subdivision (g) of section 186.22 authorizes a court to "strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors." Because subdivision (b)(5) describes an alternative penalty provision for felonies---i.e. not an enhancement and not a minimum jail term for misdemeanors---the discretion to strike provided for in subdivision (g) does not authorize the a court to refuse to impose the 15-to-life term required by subdivision (b)(5). (Campos, 196 Cal.App.4th at 448-450.)

        2. Section 1385, the general provision for striking penalties in the interest of justice, does not authorize striking the life term under subdivision (b)(5) because the Legislature intended that subdivision (g) of section 186.22---not section 1385---control the striking of penalties when subdivision (b) gang allegations are found true. (Id.at 450-454.)

      2. Fifth District: Nothing unauthorized in court's decision to strike alternative penalty under subdivision (a)(4)(C) of section 186.22. (People v. Torres (2008) 163 Cal.App.4th 1420, 1424, 1433, fns. 6 & 7.) The Court of Appeal in Campos, 196 Cal.App.4th at 449, fn.8, expressly disagreed with Torres: "Torres did not analyze the applicable language of section 186.22, subdivision (g), and it repeatedly and inaccurately described the alternate penalty prescribed by section 186.22, subdivision (b)(4)(C) as a 'gang enhancement.' [Citation.] As explained in the text, our Supreme Court has held that the punishments prescribed in subdivisions (b)(4) and (b)(5) of section 186.22 are alternate penalties, not enhancements."

  5. Felony Enhanced Under Subdivision (b) is a Serious Felony. The statutory list of serious felonies includes "any felony offense, which would also constitute a felony violation of Section 186.22." (Pen. Code § 1192.7(c)(28).) Subdivision (c)(28), added to section 1192.7 by Prop. 21 in 2000, was intended to encompass, not just substantive gang offenses under 186.22(a), but also felonies enhanced under 186.22(b).  (People v. Briceno (2004) 34 Cal.4th 451, 459, 462.) Although, the additional five-year term under 186.22(b)(1)(B) does not apply when the offense is deemed serious under 1192.7(c)(28) (Briceno, 34 Cal.4th at 465; People v. Jones (2009) 47 Cal.4th 566, 575)), the Fifth District has held that a serious felony finding under 1192.7(c)(28) for the current offense can form the basis of a five-year prior serious felony enhancement under section 667(a). (People v. Bautista (2005) 125 Cal.App.4th 646, 657; see also People v. Martinez (2005) 132 Cal.App.4th 531, 536-637.)

  6. Relationship to Gun-Use Enhancements:

    1. Felony enhanced to life term by 186.22(b) is a felony punishable by life for purposes of 12022.53. A gang enhancement which increases the penalty of the underlying offense---shooting at an occupied vehicle (§ 246) in this case---to a life term, under subdivision (b)(4) of section 186.22, makes the offense a qualifying predicate offense for application of a section 12022.53 firearm enhancement. (People v. Jones (2009) 47 Cal.4th 566, 577-578 (citing § 12022.53(a)(17) (predicate offenses for .53 enhancements include a “felony punishable by ... imprisonment in the state prison for life”).)

    2. Felony enhanced to life term by 12022.53 not a felony punishable by life for purposes of 186.22(b)(5). When a felony with a non-life determinate term is enhanced with an indeterminate life term under section 12022.53, the crime is not “a felony punishable by imprisonment for life” within the meaning of subdivision (b)(5) of section 186.22, which requires a 15-year minimum term when the underlying felony is punishable by life in prison. (People v. Montes (2003) 31 Cal.4th 350, 352; Sok181 Cal.App.4th at 94-95.) "[S]ection 186.22(b)(5) applies only where the felony by its own terms provides for a life sentence." (Id.)

    3. Montes and Jones Reconciled: "the life term imposed in Montes under section 12022.53 was a sentence enhancement, whereas in [Jones] the life term was imposed under section 186.22(b)(4), a penalty provision." (Jones, 47 Cal.4th at 577, fn.5.)

    4. Dual Use of Firearm. 

      1. 12022.5 & 186.22(b)(1)(C). It is improper to use defendant's gun-use to both impose a section 12022.5 enhancement and to impose a 10-year sentence enhancement under section 186.22(b)(1)(C) for committing a violent felony to benefit a gang. (The defendant's crime was a violent felony only because of the gun use. (§ 667.5(c)(8).) Section 1170.1(f) bars application of more than one enhancement provision for use of a firearm in a single offense. (People v. Rodriguez (2009) 47 Cal.4th 501.) The California Supreme Court has granted review on the question of whether section 1170.1(f), as interpreted in Rodriguez, precludes a trial court from imposing both a firearm use enhancement under section 12022.5(a), and a gang enhancement under section 186.22(b)(1)(B) when the offense is a serious felony, in addition to being a violent felony because of the firearm use. (People v. Le (2012) 205 Cal.App.4th 739, rev. gr. Jul 25, 2012) (No. S202921). 

      2. 12022.53 & 186.22(b)(1)(C). A defendant's personal gun use can be used to both impose a section 12022.53 enhancement  and to impose a 10-year sentence enhancement under section 186.22(b)(1)(C) for committing a violent felony to benefit a gang. (The defendant's crime was a violent felony only because of the gun use. (§ 667.5(c)(22).) (People v. Robinson (A126064, Filed. Aug. 7, 2012) ___ Cal.App.4th ___.) The Court in Robinson distinguished Rodriguez (see above) and found 1170.1(f)'s bar against dual use inapplicable becausesubdivisions (e) and (f) of section 12022.53 permitted the dual use of the personal gun use and these more specific provisions controlled. 

      3. 12022.53 & 186.22(b)(4)(A). "[S]ection 12022.53 gun enhancement should not be used both to establish the minimum term of the indeterminate life term under section 186.22, subdivision (b)(4)(A), and as a separate enhancement of that life term." (Sok, 181 Cal.App.4th at 98 (citing 12022.53(f).) Note: in Sok, the Court expressed some uncertainty about this holding: "the issue is not free from doubt and could, in at least certain circumstances, produce a somewhat anomalous result." 

    5. Firearm Use Enhancement Under Section 12022.53 May Apply to Defendant Where Offense Committed to Benefit a Gang and Co-Principal, Not Defendant, Used/Discharged Firearm. (§ 12022.53(e).)

      1. Punishments under section 12022.53 usually apply only to personal use or discharge, but under subdivision (e)(1) of section 12022.53, when offense is committed to benefit a gang, those punishments apply if another principal, but not the defendant, used or discharged a firearm: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." (Pen. Code § 12022.53, subd. (e)(1); People v. Brookfield (2009) 47 Cal.4th 583, 590.) 

        1.  Shooter Must be a Principal in Offense Committed by Defendant. Where D tried under provocative act doctrine, subdivision (e)(1) of section 12022.53 does not allow application of that section's firearm enhancements to a non-shooter where (1) D, a non-shooter, is convicted of murder under provocative act theory; (2) the shooter of the fatal shot is not among D’s group; & (3) the only shooter among D’s group is the victim, who can’t be a principal in his own murder. Subdivision (e)(1)'s provision for firearm enhancements for vicarious gun use in gang crimes apply only when another principal in the crime committed an act specified in subdivisions (a), (b) or (c) of section 12022.53.  (People v. Camino (2010) 188 Cal.App.4th 1359.) 

        2. Defendant Must Be Convicted of Offense Listed in Subdivision (a) of Section 12022.53. Thus, where D was convicted of voluntary manslaughter (an offense not listed in subdivision (a)), he was not subject to 12022.53 enhancements for aids and abettors to gang crimes, even though a co-principal was convicted of murder (an offense listed in subdivision (a)) and did so with personal discharge of a firearm causing death. (People v. Yang (2010) 189 Cal.App.4th 148, Oct. 13, 2010) 2010 WL 3993702.) 

      2. 12022.53(e)(2): If D personally uses or discharges firearm, both 186.22 and 12022.53 enhancements apply. If a principal, but not D, uses or discharges a firearm, "there is no imposition of an 'enhancement for participation in a criminal street gang ... in addition to an enhancement imposed pursuant to' section 12022.53." (Brookfield, 47 Cal.4th at 590.)

      3. Limitation in subdivision (e)(2) of section 12022.53---barring imposition of both 186.22(b) and 12022.53 enhancements when defendant receives a 12022.53 enhancement for co-principal's gun use or discharge---applies, not just to fixed-term gang enhancements, but also when defendant receives a life term under section 186.22(b). (Brookfield, 47 Cal.4th at 591-595 (rejecting AG's argument that the (e)(2) limitation applies only to fixed-term enhancements under 186.22(b), but not to life terms under that section).) "In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53's subdivision (j), choose the provision that will result in a greater sentence." (Id. at 596.) Accordingly, in Brookfield, the non-shooter defendant could not be subject to both the life term provided for under 186.22(b)(4) for a gang-related shooting at an inhabited dwelling and a 10-year gun enhancement under 12022.53(b). (Id. at 586-587.) Likewise, a non-shooter cannot be subject to both a minimum 15-year parole eligibility term under 186.22(b)(5) for a gang-related premeditated attempted murder and a 25-year gun enhancement under 12022.53(d) and (e)(1). (People v. Gonzalez (2010) 180 Cal.App.4th 1420 (striking 186.22(b)(4) 15-year minimum term and applying 7-year parole eligibility term under § 3046 for premeditated attempted murder); see also People v. Valenzuela (B226848, Filed Oct. 12, 2011) 199 Cal.App.4th 1214 (staying 15-year minimum term for gang enhancement where underlying attempted murder counts had been enhanced for gun-use by a principal (i.e. not personal use) under 12022.53).)

      4. Limitation in subdivision (e)(2) of section 12022.53 does not bar imposition of sentences for both 186.22(a) substantive offense and a 12022.53 enhancement to a robbery conviction. The limitation only applies to enhancements and subdivision (a) of section 186.22 is an offense, not an enhancement. (People v. Hunt (2011) 196 Cal.App.4th 811, 822-824.) (However, the Court of Appeal held that section 654 required a stay of  the sentence on the subdivision (a) gang offense, because it was based on the same intent as the robbery. (Id. at 824.))

      5. "An enhancement for participation in a criminal street gang ... shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." (§ 12022.53(e)(2).) Where the jury made no finding the defendant personally used a gun and the court imposes a section 12022.53 enhancement for personal gun use by a principal, the court must impose and stay the gang enhancement, unless it exercises its discretion to strike the gang enhancement under subdivision (g) of section 186.22. (People v. Sinclair (2008) 166 Cal.App.4th 848.) 

  7. Dual Use of GBI: Under section 1170.1(g), which bars multiple enhancements for great bodily injury on the same victim in a single offense, defendant could not be subject to both a section 12022.7(a) three-year GBI enhancement and a section 186.22(b)(1)(C) 10-year enhancement for a gang-related violent felony where the offense was deemed "violent" because of the infliction of GBI. (People v. Gonzalez (2009) 178 Cal.App.4th 1325 (applying the reasoning of People v. Rodriguez (2009) 47 Cal.4th 501).) 

  8. Three Strikes Law:

    1. Gang Enhancement Not Doubled. Enhancements are added after determination of the base term and are not doubled when the defendant has a prior strike. (Sok, 181 Cal.App.4th at 93-94.)

    2. Subd. (b)(5) Min. Term Doubled. Subdivision (b)(5), by setting a minimum sentence to be served prior to parole eligibility, sets the penalty for the underlying crime and is thus not a sentence enhancement. Therefore, that minimum term can be doubled under the Three Strikes Law. (People v. Jefferson (1999) 21 Cal.4th 86, 90, 100-101.)
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