People v. Francis

224 Cal. Rptr. 3d 657, 16 Cal. App. 5th 876, 2017 Cal. App. LEXIS 949
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 31, 2017
DocketB270470
StatusPublished
Cited by28 cases

This text of 224 Cal. Rptr. 3d 657 (People v. Francis) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Francis, 224 Cal. Rptr. 3d 657, 16 Cal. App. 5th 876, 2017 Cal. App. LEXIS 949 (Cal. Ct. App. 2017).

Opinion

LAVIN, J.

*879INTRODUCTION

The Street Terrorism Enforcement and Prevention Act (the STEP Act) imposes an additional penalty on any defendant who commits a felony to benefit a criminal street gang. The length of the sentence enhancement depends on whether the felony is serious, violent, or non-serious and nonviolent. Defendant Trevaun Ian Francis *6581 was convicted of a serious felony with gang and gun enhancements. Thus, the gang enhancement for serious felonies applied. Under the circumstances of this case, however, the court could not impose both the gun enhancement and *880the serious-felony gang enhancement. ( People v. Le (2015) 61 Cal.4th 416, 189 Cal.Rptr.3d 166, 351 P.3d 295 ( Le ).) Instead of staying or striking the prohibited enhancement, the court imposed the "other felonies" gang enhancement.

We conclude, based on the plain language of the statute, that the gang enhancement for "other felonies" cannot be appended to a serious or violent felony because serious and violent felonies fall within that provision's excepting clause. We therefore modify the judgment to reflect the serious-felony gang enhancement, stay the enhancement, and affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On June 8, 2010, defendant, who had recently turned 18 years old, drove two fellow members of the Rollin' 30s Harlem Crips to territory claimed by the Fruit Town Brims, a Bloods gang. Defendant shot at a cyclist who appeared to belong to the rival gang.

By second amended information filed January 14, 2011, defendant was charged with assault with a firearm ( Pen. Code,2 § 245, subd. (a)(2) ; count 1); shooting from a motor vehicle (former § 12034,3 subd. (c); count 3); and assault with a semiautomatic firearm ( § 245, subd. (b) ; count 4).4 The information alleged personal firearm use (§ 12022.5, subd.(a)) and serious-felony gang enhancements (§ 186.22, subd. (b)(1)(B)) for each count. The information also alleged that defendant had been on bail in two other cases when he committed the charged crimes (§ 12022.1).

Defendant pled not guilty and denied the allegations. After a bifurcated trial at which he testified in his own defense, a jury found defendant guilty of counts 3 and 4 and found the conduct enhancements true. Defendant waived his right to a jury determination of the truth of the two on-bail allegations, admitted one allegation (pertaining to case no. BA369882), and denied the other allegation (case no. YJ33464).5

At sentencing, defendant argued-and the prosecution conceded-that the serious-felony gang enhancement that had been alleged and proven under *881section 186.22, subdivision (b)(1)(B), was barred by section 1170.1, subdivision (f). ( Le , supra , 61 Cal.4th at p. 425, 189 Cal.Rptr.3d 166, 351 P.3d 295.) The prosecution contended, however, that Le allowed the court to impose a gang enhancement under section 186.22, subdivision (b)(1)(A), instead. After a contested hearing, the court concluded it had the authority to enhance defendant's sentence under subdivision (b)(1)(A). *659The court sentenced defendant to an aggregate term of 25 years in state prison. The court selected count 4 ( § 245, subd. (b) ) as the base term and sentenced defendant to the upper term of nine years. The court imposed the upper term of 10 years for the personal-use enhancement (§ 12022.5, subd. (a)), the upper term of four years for the gang enhancement (§ 186.22, subd. (b)(1)(A)), and two years for the on-bail enhancement (§ 12022.1), to run consecutively.6 The court stayed count 3 (former § 12034, subd. (c)) and its related enhancements under section 654 and dismissed count 1 ( § 245, subd. (a)(2) ), which was a lesser-included offense of count 4.

Defendant filed a timely notice of appeal.

DISCUSSION

In People v. Rodriguez , the California Supreme Court held that under section 1170.1, subdivision (f), when a crime qualifies as a violent felony solely because the defendant personally used a firearm in the commission of that felony, the personal use can support either a firearm enhancement (§ 12022.5, subd. (a)) or a violent-felony gang enhancement (§ 186.22, subd. (b)(1)(C)), but not both.7 ( People v. Rodriguez (2009) 47 Cal.4th 501, 509, 98 Cal.Rptr.3d 108, 213 P.3d 647 ( Rodriguez ).) In Le , the court extended the rule to serious-felony gang enhancements (subd. (b)(1)(B)). ( Le , supra , 61 Cal.4th at pp. 425, 429, 189 Cal.Rptr.3d 166, 351 P.3d 295.)

In this case, as in Le , defendant was convicted of assault with a semiautomatic firearm ( § 245, subd. (b) ) with personal-use (§ 12022.5, subd. (a)) and gang enhancements (subd. (b)(1)). The trial court recognized that under Rodriguez and Le , it could not enhance defendant's sentence under either *882subdivision (b)(1)(B) or (b)(1)(C)-but concluded it could enhance the sentence under subdivision (b)(1)(A), the gang enhancement for non-serious, nonviolent felonies.

While the People insist the reasoning of Rodriguez and Le does not extend to subdivision (b)(1)(A) enhancements, this case does not require us to resolve that question. Instead, the issue turns on familiar principles of statutory interpretation and plain language. Applying those principles, we hold that because subdivision (b)(1)(A) unambiguously excludes serious and violent felonies, that enhancement may not be appended to a serious or violent felony.

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Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 657, 16 Cal. App. 5th 876, 2017 Cal. App. LEXIS 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-francis-calctapp5d-2017.