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People v. Myers12/17/1997
Penal Code section 12022.7, subd. (a).
On the conviction of first degree murder (count I), appellant was sentenced to prison for 25 years to life, plus six years for the Penal Code section 12022.55 enhancement. On count II, the attempted murder of Bernard Thomas, appellant was sentenced to life with the possibility of parole, plus six years on the Penal Code section 12022.55 enhancement, to run consecutively to the sentence on the first degree murder conviction. The three year great bodily injury enhancement (Pen. Code, § 12022.7) was stayed pursuant to Penal Code section 654. On count III, the attempted murder of Garlon Robinson, appellant was sentenced to life with the possibility of parole, to run concurrently with the sentence on count I.
Appellant appeals from the judgment of conviction.
II.
Discussion
A. Penal Code section 654 does not bar the imposition of the Penal Code section 12022.55 enhancement on the murder conviction.
Appellant contends the trial court was precluded from imposing the six-year term for the enhancement on the first degree murder conviction. He argues, "because discharging a firearm from a motor vehicle with the specific intent to cause death was the crux of the murder of Bonija Fair and the enhancement imposed thereunder, the enhancement constituted an element of the underlying felony and, thus, its imposition was improper." We find this contention not persuasive.
Penal Code section 654 reads: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."
"The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though the act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense -- the one carrying the highest punishment. [Citation.]" ( People v . Liu (1996) 46 Cal. App. 4th 1119, 1135.) In this way, punishment is commensurate with a defendant's culpability. ( People v. Latimer (1993) 5 Cal. 4th 1203, 1211, 858 P.2d 611.)
To date, our Supreme Court has not addressed the broad issue as to whether Penal Code section 654 applies to all enhancements. ( People v. Masbruch (1996) 13 Cal. 4th 1001, 1013, 920 P.2d 705; People v. King (1993) 5 Cal. 4th 59, 78, 851 P.2d 27; People v. Jones (1993) 5 Cal. 4th 1142, 1152, 857 P.2d 1163.) Further, the courts of appeal are split on the issue. (See cases listed in People v. Coronado, supra, 12 Cal. 4th 145 at p. 157, 906 P.2d 1232; People v. Flournoy (1994) 26 Cal. App. 4th 1695, 1698, fn. 2; People v. Rodriguez (1988) 206 Cal. App. 3d 517, 519, 253 Cal. Rptr. 633; People v. Dobson (1988) 205 Cal. App. 3d 496, 501, 252 Cal. Rptr. 423; see generally, 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, § 1384, pp. 1628-1630 & (1997 Supp.) § 1384, pp. 73-77.)
Many of the cases refusing to apply section 654 to enhancements reason it is inapplicable because enhancements do not define an offense, but rather prescribe increased punishment in certain circumstances. ( People v. Warinner (1988) 200 Cal. App. 3d 1352, 1355, 247 Cal. Rptr. 197; People v. Parrish (1985) 170 Cal. App. 3d 336, 344, 217 Cal. Rptr. 700.) Nearly all cases which do apply Penal Code section 654 to enhancements have limited the number
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