People v. Myers12/17/1997
ld strike, it also deleted Penal Code section 12022.55 from the same list. (Stats. 1989, ch. 1044, § 1.) Thus, application of Penal Code section 654 to this case would be inconsistent with section 1170.1, subdivision (h).
Further, the purpose of Penal Code section 12022.55 is to deter persons from discharging firearms from a motor vehicle and thereby inflicting great bodily injury or death, the exact result which occurred here. To refrain from imposing the enhancement would contradict the exact terms of the statute, preventing the imposition of the enhancement in many instances of murder, manslaughter and attempted murder, the most vicious results of discharging a weapon from a motor vehicle. Imposing the enhancement fulfills the legislative purpose of punishing more severely those crimes which actually result in great bodily injury. (Cf. People v. Parrish, supra, 170 Cal. App. 3d at pp. 343-344.) Under appellant's interpretation of Penal Code section 12022.55, where a victim dies from bullets fired from a vehicle, the person who pulls the trigger can never have the sentenced enhanced, pursuant to Penal Code section 12022.55. This result would undermine the intent of the legislation, which was to punish such acts harshly. Had appellant not discharged a weapon, Fair would be alive.
The extinction of Fair's life was the crime. The use of the firearm was merely the method which achieved this crime. Thus, the underlying crime and the enhancement are not identical and there was no double punishment under Penal Code section 654.
We also note that Penal Code section 189, murder, was amended in 1993, after the enactment of section 12022.55. The amendment to Penal Code section 189 added to the category of crimes which constitute first degree murder, those deaths which resulted from shootings from vehicles. (Pen. Code, § 189, amended Stats. 1993, ch. 611, § 4.5, eff. Sept. 30, 1993.) The legislature did not, at that time, also amend Penal Code section 12022.55 to make it inapplicable to such crimes. One year later, the governor signed legislation amending section 12022.55 to increase its penalty, yet the Legislature did not state it should not be applied to murders caused as a result of drive-by shootings. (Pen. Code, § 12022.55, amended Stats. 1993-1994, 1st Ex. Sess., ch. 31, § 4, signed by governor Sept. 21, 1994.) Had the Legislature desired to limit the application of Penal Code section 12022.55, it could have done so at that time.
Further, as noted above, had the Legislature intended to prohibit the imposition of the section 12022.55 enhancement when it made shootings from vehicles resulting in death first degree murders, it would have done so when Penal Code section 189 was amended, or when it subsequently amended Penal Code section 12022.55.
Here, the jury was instructed with CALJIC No. 8.25.1 which stated that murder of the first degree included those murders "perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death . . . ." Based upon this instruction, appellant argues imposition of the Penal Code section 12022.55 enhancement was erroneous because discharging the weapon constituted an element of the underlying offense. This argument is not persuasive.
CALJIC No. 8.25.1 tracks a portion of Penal Code section 189 which establishes that certain types of murders are murders in the first degree. As specified in Penal Code section 189, murders perpetrated by "means of destructive device or explosive, . . . lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . or any murder which
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