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People v. Ford8/25/2005
reover, counsel's strategy was based largely on defendant's own statement.
Based on our review of the record, we conclude that defendant failed to show his trial counsel's performance amounted to constitutionally defective representation. "Counsel merely did the best he could in the face of difficult circumstances. Defendant's argument that counsel gave away his case is premised on wishful thinking about the strength of the evidence against him." (People v. Lewis, supra, 50 Cal.3d at p. 292.)
4. Firearm Enhancement
Defendant argues that section 12022.53, subdivision (j), precludes the court from imposing multiple sentences for the crime of attempted murder and the enhancement for personally discharging a firearm. In support of his argument, defendant relies on the case, People v. Shabazz (S131048), which was granted review on March 16, 2005. Contrary to the holding in Shabazz, other courts have interpreted section 12022.53, subdivision (j), as precluding the imposition of more than one sentence for the personal use or discharge enhancement, but not limiting the court's authority to impose sentence for both the substantive offense and the enhancement. (People v. Chiu (2003) 113 Cal.App.4th 1260, 1263- 1265; People v. Coker (2004) 120 Cal.App.4th 581, 590.) For the reasons stated in those opinions, we reject defendant's argument.
5. Great Bodily Injury Enhancement
Defendant argues the trial court erred in failing to apply section 654 to strike the three-year sentence for the great bodily injury enhancement. Although the People agree with defendant's argument, the People contend that the court should have stayed sentence for the enhancement.
Section 654 prohibits multiple punishments for the same act, or an individual course of conduct committed pursuant to a single objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11.) The Supreme Court has yet to decide whether section 654 applies to enhancements. (People v. Jones (1993) 5 Cal.4th 1142, 1152.)
Nevertheless, the parties agree that the court should not have imposed both sentences because the enhancements arose from a single act. Based on defendant's single act of shooting Johnson in the abdomen, defendant was charged with and found guilty of personally discharging a firearm and proximately causing great bodily injury under section 12022.53, subdivision (d), and personally inflicting great bodily injury under section 12022.7, subdivision (a). Both enhancements punished defendant for the same act and the same injury. Therefore, assuming that section 654 applies to enhancements, we agree that the court should have stayed sentence for the great bodily injury enhancement under section 12022.7, subdivision (a). (See People v. Eck (1999) 76 Cal.App.4th 759, 762.)
6. Disposition
We affirm defendant's conviction, but reverse his sentence as to the great bodily injury enhancement under section 12022.7, subdivision (a). The trial court is directed to correct the judgment by staying the three-year sentence for that enhancement and then forward a corrected abstract of judgment to the Department of Corrections.
We concur: Richli Acting P. J. King J.
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