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People v. Myers12/17/1997
to the facts at hand would severely hamper the efficacy of section 12022.5, subdivision (a) by preventing imposition of the enhancement in many instances of murder and manslaughter. . . . . . . The trial court here concluded the enhancement should be stayed under section 654 because 'it's the identical act as the crime itself.' However, [the defendant's] use of the firearm was not a crime in and of itself. The crime was the extinction of a human life, determined by the jury to be a voluntary manslaughter . . . . The gun was simply the method selected by [the defendant] to accomplish the crime, and the particular method selected subjects [the defendant] to an additional penalty. Because the underlying crime and the enhancement are not identical, there is and can be no double punishment under section 654. Finally, we must observe, . . . that the result reached here upholds legislative policy. '. . . The purpose of section 12022.5 is to discourage the use of firearms, and more fundamentally, to prevent people from being killed. [Citations] 'Had [the defendant] not brandished a firearm, the victim in this case might be alive. Imposition of an additional penalty for use of a firearm is consistent with the language and purpose of the statute, and is eminently reasonable.' ( People v. Read 142 Cal. App. 3d [900,] 906.)" ( People v. Ross, supra, 28 Cal. App. 4th at p. 1158-1159, original italics.)
The case before us deals with Penal Code section 12022.55. This statute provides for the enhancement of a sentence when the defendant personally inflicts great bodily injury or death by discharging a firearm from a motor vehicle. ( People v. Williams, supra, 14 Cal. App. 4th at pp. 604-605.) The statute deals with a treacherous and cowardly act. "It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension . . . ." ( People v. Bostick (1996) 46 Cal. App. 4th 287, 292.) One of the Legislature's primary concerns in enacting this statute was to address the epidemic of drive-by shootings in which large numbers of persons are likely to be present. ( Id., at p. 293, conc. opn. of Kline, P.J.) It was to deter " '. . . persons from violent actions upon our public streets and highways . . . .' " ( People v. Bostick, supra, at p. 292, citation omitted.)
Unlike Penal Code section 12022.5, which focuses on a defendant's use of a firearm, Penal Code section 12022.55 focuses on the victim's injuries. It specifically "requires that the defendant intend to and actually inflict great bodily injury on a victim." ( People v. Alvarez, supra, 9 Cal. App. 4th at p. 128.) Section 12022.55 enhancements may only be imposed upon the person who actually fires the weapon, it cannot be imposed on an aider and abettor. ( In re Jose D. (1990) 219 Cal. App. 3d 582, 268 Cal. Rptr. 364.)
Penal Code section 12022.55 reads: "Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 5, 6, or 10 years."
The reasoning of Ross applies equally to the case before us.
In 1989, when the Legislature amended Penal Code section 1170.1, subdivision (h) to delete Penal Code section 12022.5 from the list of enhancements a court cou
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