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People v. Munger4/14/2004
at places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person." (See also In re Tameka C., supra, 22 Cal.4th at pp. 193-196 and cases cited therein regarding § 12022.5 gun use enhancements involving multiple victims.) [FN4]
FN4. Interestingly, section 12022.5, subdivision (a), which specified the enhanced punishment to be imposed for personal use of a firearm, also uses the singular article "an" in referring to an additional term of punishment. Multiple section 12022.5 enhancements are proper when the defendant uses a gun against multiple victims on a single occasion. (See In re Tameka C., supra, 22 Cal.4th at pp. 193-196; People v. King (1993) 5 Cal.4th 59, 78-79; People v. Chacon (1995) 37 Cal.App.4th 52, 66 .)
*4 Next, Munger contends the trial court erred by imposing the two section 12022.7, subdivision enhancements consecutive to each other. Munger argues the court erroneously believed it had no discretion to impose the two enhancements concurrent to each other, and as a result, failed to exercise its discretion. The contention is without merit.
In this case involving two separate victims who suffered permanent paralysis, the court lacked discretion to have the enhancements run concurrent to each other. As the court observed, the only discretion it had with respect to imposition of these two mandatory enhancements would be to strike one or both of them under section 1385.
In imposing the two section 12022.7, subdivision (b) enhancements to run consecutive to each other, the court observed there were two separate victims who suffered great bodily injury that resulted in permanent paralysis. The court continued:
"I certainly can't say to [K]ory Laird and I can't say to Peter Flynn that their injuries are of no consequence. I can't say to either of them, well, [K]ory, I will impose the enhancement as to you, but, Peter, not as to you because I don't like the numbers.... That is not my role. My role isn't to pick a number out of a hat. As I said earlier, my role is to determine the sentence that the law authorizes and really requires of the court.
"The five-year enhancement as to [K]ory Laird and as to Peter Flynn applies as to each of them and this court believes it should impose the enhancements as mandated by law as the Legislature determined should be the case in a case such as this. As a result, the five-year enhancements are imposed related to both [K]ory Laird and Peter Flynn."
Later, when defense counsel asked for clarification on the enhancements, the court responded:
"I have imposed the sentence that I believe the law requires the court to impose under the circumstances. Counsel, I believe that the allegations are there for a reason. Those are the allegations applying to the injuries sustained in this offense, that it seems to me should be imposed by the court. If I found a good reason to do otherwise, then perhaps the court would reconsider. But the bottom line is that I do not find a basis for exercising [section ] 1385 discretion with respect to either of those allegations." (Italics added.)
Munger is correct that imposing consecutive sentences is a discretionary call for the trial court. Imposition of consecutive rather than concurrent sentences is a "sentence choice" for which the court must state it reasons. (People v. Walker (1978) 83 Cal .App.3d 619, 622; see also Cal. Rules of Court, rule 4.406(b).) [FN5] A "sentence choice" is the court's "selection of any disposition of the case which does not a amount to a dismissal, acquittal or grant of a new trial." (Rule 4.405(f).) The word "choice" connotes the court has discretion to select among alternatives. A co
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