People v. Myers12/17/1997
of enhancements applied to a single conviction, when there was a single act committed against a single victim. ( People v. Akins (1997) 56 Cal. App. 4th 331, 338; 3 Witkin & Epstein, Cal. Criminal Law, (supra) , (1997 Supp.) Punishment for Crime, § 1384, p. 74.)
Here, our focus is narrowly drawn on an issue never before addressed. Can Penal Code section 654 be applied when an enhancement is imposed pursuant to Penal Code section 12022.55 for discharging a firearm from a motor vehicle, when the defendant is convicted of murder resulting from discharging the firearm from a motor vehicle?
In People v. Ross (1994) 28 Cal. App. 4th 1151 the defendant raised an argument almost identical to the one before us, in dealing with a different enhancement, Penal Code section 12022.5, subdivision (a), personally using a firearm.
In Ross, the defendant's car was stolen, but the thief later returned to the same area where the car had been taken. The defendant saw the car and approached the thief; an argument ensued. The defendant withdrew a revolver and shot the thief. The defendant was convicted of voluntary manslaughter and it was found true the defendant had personally used a weapon, pursuant to Penal Code section 12022.5, subdivision (a). The trial court imposed, but pursuant to Penal Code section 654 stayed, the enhancement "because the gun use was also the act accomplishing the homicide." ( People v. Ross, supra, 28 Cal. App. 4th at pp. 1155-1156.) Thus, as appellant does in our case, the trial court in Ross focused on the "manner of committing this homicide in the particular, rather than in the abstract." ( Id., at p. 1156.)
Ross recognized the split of authority on the general issue as to whether Penal Code section 654 was applicable to enhancements. Ross narrowed the focus of its Discussion to "whether section 654 may be applied to a firearms enhancement in a homicide which was committed by the use of a firearm." ( People v. Ross, supra, 28 Cal. App. 4th at p. 1155.)
Ross first examined Penal Code section 12022.5, subdivision (a) which stated that such enhancement shall be imposed "unless" the use of the firearm was an element of the offense. Ross concluded the use of a firearm was not an element of the offense of voluntary manslaughter, in the abstract. Thus, the imposition of the enhancement was not excluded by the statutory language. ( People v. Ross, supra, at p. 1156, approved by People v. Hansen (1994) 9 Cal. 4th 300, 316-317, 885 P.2d 1022.)
Ross noted that in the 1989 amendments to Penal Code section 1170.1, subdivision (h), the Legislature "specifically deleted [Penal Code] section 12022.5, subdivision (a) from the list of enhancements a court could strike." ( People v. Ross, supra, 28 Cal. App. 4th at p. 1157; Stats. 1989, ch. 1044, § 1.)
Ross then examined the entire statutory scheme, including Penal Code section 1170.1, subdivision (h). ( Id., at p. 1157.) "Application of section 654 to this case would clearly be inconsistent with section 1170.1, subdivision (h). To the extent section 654 could formerly have been interpreted to bar imposition of the enhancement under the facts of this case, it has been superseded by section 1170.1 as it has read since its 1989 amendment by Statutes 1989, chapter 1044. The purpose behind section 12022.5, subdivision (a) is to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use. [Citation.] The 1989 section 1170.1, subdivision (h) amendment demonstrates a further intent to combat the increasing use of firearms in the commission of felonies with a mandatory imposition of 12022.5, subdivision (a). . . . Application of section 654
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