Filed 6/15/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                           )
                                      )
           Plaintiff and Respondent,  )
                                      )                            S202921
           v.                         )
                                      )                     Ct.App. 4/1 D057392
ERIC HUNG LE et al.,                  )
                                      )                       San Diego County
           Defendants and Appellants. )                   Super. Ct. No. SCD212126
____________________________________)


        In People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), we held that a
defendant‟s single act of personally using a gun during the commission of a felony
could not be used to support both a sentence enhancement for personal use of a
firearm under Penal Code section 12022.5, former subdivision (a)(1),1 and to
elevate the punishment for a criminal street gang allegation to a “violent felony”
under section 186.22, subdivision (b)(1)(C). We explained that the application of
both enhancements in that case depended on the defendant‟s use of a firearm, and
that subdivision (f) of section 1170.1 prohibits imposing two sentence
enhancements when both enhancements are “ „for being armed with or using a
dangerous or deadly weapon or a firearm in the commission of a single offense.‟ ”
(Rodriguez, supra, at p. 508, quoting § 1170.1, subd. (f), italics omitted.)


1       All further statutory references are to the Penal Code.
       We granted review in this case to decide whether section 1170.1,
subdivision (f) also precludes a trial court from imposing both a firearm
enhancement under section 12022.5, former subdivision (a)(1), and a gang
enhancement under section 186.22, subdivision (b)(1)(B), in connection with a
single offense, when the offense is a “serious felony” under section 186.22,
subdivision (b)(1)(B) and involved the use of a firearm. In the present case,
because both enhancements again depend on defendant‟s firearm use, we conclude
that section 1170.1, subdivision (f) bars the imposition of both enhancements.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
       On June 14, 2002, defendants Eric Hung Le and Down George Yang of the
Tiny Oriental Crips street gang committed a drive-by shooting outside a San
Diego pool hall, believing that they were aiming at rival Asian Crips gang
members. Instead, two bullets wounded members of a completely different gang,
and a third bullet killed the owner of the pool hall, Don Su.
       Following a jury trial, defendants were convicted of murder (§ 187,
subd. (a), count 1); attempted willful, deliberate and premeditated murder (§§ 664,
187, subd. (a), count 2); discharging a firearm from a motor vehicle (former
§ 12034, subd. (d), count 3); and assault with a semiautomatic firearm (§ 245,
subd. (b), counts 4 & 5). The jury also found true that the crimes in counts 1
through 5 were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)); that as to counts 1, 2 and 3, Le and Yang were principals in the
offenses and that during their commission, at least one principal used a firearm
(§ 12022.53, subds. (d) & (e)(1)); and finally, as to counts 3 and 4, that Yang
personally used a firearm (§ 12022.5, former subd. (a)(1)). The verdict reflects
that the jury accepted the prosecution‟s theory that Le was the driver and Yang
was the shooter. Le was sentenced to a term of 96 years to life and Yang to a term
of 101 years to life.

                                          2
       At issue in this case is the trial court‟s sentencing of defendant Yang on
count 4, assault with a semiautomatic firearm under section 245, subdivision (b).
As to this count, the jury found true that defendant Yang committed the assault
while personally using a firearm under former section 12022.5, subdivision
(a)(1).2 This sentence enhancement imposes an additional consecutive prison term
of three, four, or 10 years.3 Also as to count 4, the jury found true that defendant
Yang committed the assault for the benefit of a street gang under section 186.22,
subdivision (b)(1), but the charging document did not specify whether it should be
enhanced as a “serious felony” (§ 186.22, subd. (b)(1)(B)), which imposes an
additional five-year prison term, or as a “violent felony” (§ 186.22,
subd. (b)(1)(C)), which imposes an additional 10-year term.
       At the sentencing hearing, the parties contested the applicability of
Rodriguez to count 4. In Rodriguez, the defendant fired shots at rival gang
members, and a jury later found him guilty of assault with a firearm (§ 245,
subd. (a)(2)) and made findings under two different sentencing enhancement
statutes: (1) that defendant personally used a firearm (§ 12022.5, subd. (a)); and
(2) that he committed a “violent felony” to benefit a criminal street gang
(§ 186.22, subd. (b)(1)(C)). In rejecting the argument that the section 186.22

2      The 2002 version of section 12022.5 applicable in this case did not differ
from the current version in any significant respect. (See Stats. 1999, ch. 129, § 5,
pp. 1803-1804, amending § 12022.5.) Accordingly, subsequent citations in this
opinion will not distinguish between the two versions of the statute.
3      Generally, a defendant is exempt from a section 12022.5 enhancement if
the “use of a firearm is an element of” the charged offense. (§ 12022.5, subd. (a).)
But section 12022.5 contains an exception if a defendant commits a section 245
violation using a firearm. (§ 12022.5, subd. (d).) Therefore, despite the fact that
defendant Yang‟s section 245, subdivision (b) violation included the element of
the use of a semiautomatic firearm, his crime is not exempt from enhancement
under section 12022.5.



                                          3
enhancement applied not only to the defendant‟s use of a firearm but also to the
allegation of committing a felony to benefit a street gang, we explained that the
defendant became eligible for the 10-year gang enhancement for a violent felony
“only because he „use[d] a firearm which use [was] charged and proved as provided
in . . . Section 12022.5.‟ ” (Rodriguez, supra, 47 Cal.4th at p. 509, quoting
§ 667.5, subd. (c)(8).) In other words, the only factor that qualified the
defendant‟s assault as a violent felony under section 667.5 was his use of a firearm
— and that, in turn, made him eligible for the 10-year gang enhancement under
section 186.22, subdivision (b)(1)(C) for violent felonies. Because both the
section 12022.5 personal use enhancement and the section 186.22 gang
enhancement for a violent felony depended on the defendant‟s use of a firearm, the
sentence violated the prohibition contained in section 1170.1, subdivision (f)
against enhancing a sentence twice for firearm use. (Rodriguez, supra, at p. 509.)
       In the present case, the prosecutor sought to impose the upper term on
defendant Yang for count 4; that is, the maximum term of nine years for the
assault with a firearm, along with the maximum term of 10 years for the firearm
use enhancement under section 12022.5, subdivision (a)(1). But the prosecutor
recognized that, if the section 186.22 enhancement were treated as a violent felony
under section 186.22, subdivision (b)(1)(C), Rodriguez and section 1170.1,
subdivision (f) would apply to bar an additional 10-year enhancement.
Accordingly, the prosecutor asked the trial court to treat the section 186.22
enhancement simply as a “gang allegation” that is “not for being armed” and to
impose a five-year enhancement under subdivision (b)(1)(B) of that statute. In
essence, the prosecutor argued that because the complaint did not specifically
allege that the section 186.22 enhancement was a violent felony under subdivision
(b)(1)(C) of that statute, it did not constitute an “enhanced gang allegation” based
on the use of a firearm. The trial court disagreed. The court believed that, under

                                          4
Rodriguez, it could not impose terms for both enhancements because the jury‟s
findings made defendant‟s assault a violent felony under section 667.5, thereby
making the applicable enhancement the same 10-year term under 186.22,
subdivision (b)(1)(C) that was at issue in Rodriguez. Accordingly, the court
imposed the 10-year term for that enhancement, but stayed any sentence
enhancement under section 12022.5, subdivision (a). It noted, however, that if the
court could have applied that enhancement it would have chosen the upper term of
10 years, based on the nature of the offense.
       Defendants appealed their convictions and the People appealed the trial
court‟s decision to stay the enhancement on count 4. The People argued that the
trial court should have imposed a five-year enhancement for a serious felony under
section 186.22, subdivision (b)(1)(B) because it had been “generically” pleaded in
the complaint without reference to whether it was a serious or violent felony or to
the firearm use allegation.
       The Court of Appeal affirmed defendants‟ convictions, and it also affirmed
the trial court‟s stay of the section 12022.5 enhancement. The Court of Appeal
applied the holding of Rodriguez, concluding that the generic pleading of the gang
enhancement allegation in the present case was a “distinction without a
difference,” and it held that the record supported the finding that the personal gun
use and gang enhancements were both based on firearm use involving the single
offense of assault with a semiautomatic weapon.
       We granted the People‟s petition for review.
                                  II. DISCUSSION

       A. Overview of the Applicable Statutes
       The statutes at issue here are (1) section 245, subdivision (b), assault with a
semiautomatic firearm — the base felony crime for defendant Yang‟s conviction



                                          5
on count 4; (2) section 12022.5, subdivision (a)(1) — the personal use of a firearm
enhancement for count 4; (3) section 186.22, subdivision (b), the enhancement for
committing count 4 for the benefit of a criminal street gang, which provides
different levels of enhancement depending on whether count 4 is a violent felony,
a serious felony, or other felony; (4) section 667.5, which lists what felonies
qualify as violent felonies; (5) section 1192.7, which lists what felonies qualify as
serious felonies; and (6) section 1170.1, subdivision (f), which prohibits imposing
sentences on multiple enhancements of a single offense involving the use of a
firearm or dangerous or deadly weapon.
       Section 186.22, the gang enhancement statute, is particularly important to
the question presented here. As explained, it provides different levels of
enhancement for the base felony if that felony is “committed for the benefit of, at
the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members
. . . .” (§ 186.22, subd. (b)(1).) If the base felony qualifies as a violent felony
under the list of felony crimes contained in section 667.5, then “the person shall be
punished by an additional term of 10 years.” (§ 186.22, subd. (b)(1)(C).) If the
base felony qualifies as a serious felony under the list of felony crimes contained
in section 1192.7, then “the person shall be punished by an additional term of five
years.” (§ 186.22, subd. (b)(1)(B).) If the base felony qualifies neither as serious
or violent, then “the person shall be punished by an additional term of two, three,
or four years at the court‟s discretion.” (§ 186.22, subd. (b)(1)(A).) Section
186.22, subdivision (b)(1)‟s three sentence provisions, therefore, reflect the
intention to impose progressively longer sentence enhancements based on the
severity of the felony categorized across three tiers. It is also important to note
that the sentence enhancements in section 186.22, subdivision (b)(1) are



                                           6
mandatory — all three provisions specify that the additional punishment “shall” be
imposed. (People v. Vega (2013) 214 Cal.App.4th 286, 295.)
       Section 1192.7, which lists the felonies that qualify as serious felonies,
refers to several crimes that involve the use of a firearm or a deadly weapon. (See
§ 1192.7, subd. (c)(8), (11), (13), (23), (26), (31)-(33).) Section 667.5, which lists
the felonies that qualify as violent felonies, refers to only one crime that
necessarily involves the use of a firearm or deadly weapon — “any felony in
which the defendant uses a firearm which use has been charged and proved as
provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.”
(§ 667.5, subd. (c)(8).)
       Subdivision (f) of section 1170.1 prohibits multiple enhancements of
punishment as to a single offense for being armed with or using a firearm or
dangerous or deadly weapon. That section states, in part: “When two or more
enhancements may be imposed for being armed with or using a dangerous or
deadly weapon or a firearm in the commission of a single offense, only the
greatest of those enhancements shall be imposed for that offense.” (§ 1170.1,
subd. (f).) Thus, the sentencing limitation of section 1170.1, subdivision (f), can
apply, not only for enhancements involving the personal use of a firearm in the
commission of the offense, but also if the enhancement is imposed for simply
“being armed” during the commission of the offense.
       As in Rodriguez, we must decide whether section 1170.1, subdivision (f)
prohibits the imposition of sentence on both enhancements in the present case —
the personal use of a firearm enhancement under section 12022.5,
subdivision (a)(1) and the gang enhancement under section 186.22,
subdivision (b)(1). In Rodriguez, we concluded that the imposition of sentence on
both enhancements violated section 1170.1 because the People had pleaded the
gang enhancement under the violent felony provision, section 186.22,

                                           7
subdivision (b)(1)(C). As described above, we examined the list of violent
felonies contained in section 667.5 and determined that it was solely gun use that
made the defendant‟s crime qualify as a violent felony under that section.
Specifically, we referred to section 667.5, subdivision (c)(8), which makes the
base crime a violent felony if the defendant “ „use[d] a firearm which use [was]
charged and proved as provided in . . . Section 12022.5.‟ ” (Rodriguez, supra, 47
Cal.4th at p. 509, quoting § 667.5, subd. (c) (8).) The defendant in Rodriguez
became eligible for the 10-year violent felony enhancement under section 186.22,
subdivision (b)(1)(C) solely because of his personal use of a firearm, and as
sentenced his “firearm use was punished under two different sentence
enhancement provisions, each pertaining to firearm use.” (Rodriguez, supra, at
p. 509.) This, we held, violated section 1170.1, subdivision (f)‟s prohibition
against imposing multiple firearm sentence enhancements for a single base crime.
       In the present case, unlike in Rodriguez, the People did not specify whether
their complaint sought to impose the section 186.22 gang enhancement as a
violent felony, serious felony, or other felony. Instead, the People generically
pleaded the gang enhancement under section 186.22, subdivision (b)(1), and the
prosecutor argued at sentencing that the trial court should impose a five-year
enhancement.4 Because subdivision (b)(1)(B) is the only provision of section
186.22, subdivision (b)(1) that calls for the imposition of a five-year enhancement,




4     In fact, regarding all five counts, the People pleaded the section 186.22
gang enhancement under subdivision (b)(1) without specifying whether they
sought enhancement as a serious, violent, or other felony.




                                         8
we assume the People sought to categorize that enhancement as a serious felony
for purposes of section 1192.7.5

       B. Whether Count 4 Qualifies as a Serious Felony Involving the Use of
          a Firearm
       As the trial court concluded and defendant agrees, defendant‟s assault with
a semiautomatic firearm qualified as a violent felony under section 667.5,
subdivision (c). We need not decide whether, as defendant argues, the trial court
lacked discretion to designate the gang enhancement as anything other than one
for a violent felony under section 186.22, subdivision (b)(1)(C), because even if
the trial court retained discretion to designate the crime as a serious felony for the
purpose of section 186.22, subdivision (b)(1)(B), under the facts of this case, the
crime would qualify as a serious felony solely because it involved firearm use.6
       As previously explained, count 4 charged defendant Yang with violating
section 245, subdivision (b), assault with a semiautomatic firearm. Section 1192.7
designates several assault-related crimes as serious felonies, but defendant‟s crime
is not a serious felony by virtue of any of these provisions. Rather, as the dissent
fails to recognize, defendant‟s crime qualifies as a serious felony solely because it

5      The Court of Appeal did not consider whether such a “generic” pleading is
permissible, or whether the prosecutor may wait until sentencing to specify under
which provision of section 186.22, subdivision (b)(1) the People seek to enhance
the sentence. We asked the parties to submit additional briefing on this issue, and
the parties both contend that the prosecution met its pleading burden by
generically pleading section 186.22, subdivision (b)(1). Specifically, the parties
claim that such pleading is permissible because the state cannot know until the
jury‟s verdict whether defendant will be convicted of other charged crimes,
enhancements, or lesser offenses that may dictate which subparagraph of
subdivision (b)(1) is applicable. Because the parties do not contest matters of
notice and the sufficiency of the pleading, we express no opinion on these issues.
6     Similarly, the parties have not raised, nor do we address or decide, whether
subdivision (b)(1)(A) of section 186.22 might be applicable here.



                                           9
involved a firearm. The crime fell under subdivision (c)(8) of section 1192.7,
which applies to “any felony in which the defendant personally uses a firearm”
(id., subd. (c)(8)), or subdivision (c)(23), which applies to “any felony in which
the defendant personally used a dangerous or deadly weapon” (§ 1192.7,
subd. (c)(23)), or subdivision (c)(31), which applies to “assault with a deadly
weapon, firearm, machinegun, assault weapon, or semiautomatic firearm.” These
three provisions constitute the sole bases under which the conduct described in
count 4 would be a serious felony, and they all clearly implicate the use of a
firearm. No other provision of section 1192.7, subdivision (c), appears applicable
to qualify count 4 as a serious felony.7
       Therefore, as was the case in Rodriguez, supra, 47 Cal.4th 501, defendant
Yang‟s section 186.22 gang enhancement for count 4, regardless of whether it
qualified as a serious or violent felony under subdivision (b)(1)(B) or (b)(1)(C), is
an enhancement “imposed for being armed with or using . . . a firearm.”
(§ 1170.1, subd. (f).) Under section 1170.1, subdivision (f), the underlying felony,
based on section 245, subdivision (b), could not be enhanced for use of a firearm
both under section 12022.5, subdivision (a), and section 186.22, subdivision
(b)(1). Rather, section 1170.1 required that only the greater of the two
enhancements — in this case, the enhancement under section 12022.5 — could be
imposed.




7      Another provision of section 1192.7 designates shooting from a vehicle as a
serious felony (id., subd. (c)(36)), but this felony, former section 12034,
subdivision (d), was the subject of count 3, not count 4. Count 3 charged its own
sentence enhancements under sections 186.22 and 12022.53. Furthermore,
1192.7, subdivision (c)(1) designates murder as a serious felony, but this felony
was the subject of count 1.



                                           10
       C. The People’s Arguments
       The People, along with the dissent, advance a number of arguments urging
that section 1170.1, subdivision (f), does not apply here. We reject these
contentions.
       The People repeat the same argument they raised in Rodriguez — that the
section 186.22 enhancement is not subject to the limiting language of section
1170.1, subdivision (f) because that enhancement is for committing a felony to
benefit a street gang, not for a defendant‟s firearm use. But accepting such an
argument would defeat the core principle of Rodriguez. We explained in
Rodriguez that the relevant concern is whether the underlying felony‟s designation
as serious or violent is “based on defendant‟s firearm use.” (Rodriguez, supra, 47
Cal.4th at p. 508.)
       Nor does it matter that the People refrained from specifically pleading that
the section 186.22 gang enhancement involved the use of a gun. This
circumstance does not eliminate the need to determine precisely why the People
contend that count 4 qualifies as a serious felony. Determining whether the
section 186.22 gang enhancement qualifies as a violent, serious, or other felony
for count 4 requires reference to the statutory schemes defining such
classifications based on the underlying conduct for which defendant was convicted
under that count. As we have explained, in this matter defendant Yang‟s
conviction on count 4 can be designated as a violent felony under section 667.5,
subdivision (c)(8) only because of his use of a firearm, but that same conduct also
constitutes a serious felony under section 1192.7, subdivision (c), likewise under
provisions that are based on the use of a firearm. Indeed, on appeal, the People
concede that count 4 qualifies as a serious felony because section 1192.7,
subdivision (c)(31) makes assault with a semiautomatic firearm a serious felony.
For purposes of section 1170.1, subdivision (f), this circumstance is no different


                                         11
from that presented under Rodriguez. Although there are many other crimes
designated as serious or violent felonies that do not necessarily involve the use of
a firearm, just as was the case in Rodriguez, they are not implicated here.
       The People further argue that neither the underlying felony in count 4 nor
the section 186.22, subdivision (b)(1) gang enhancement required the personal use
of a firearm, thereby rendering inapplicable the limiting language of section
1170.1, subdivision (f). But section 1170.1, subdivision (f) makes no such
distinction. The sentence limitation applies “[w]hen two or more enhancements
may be imposed for being armed with or using a dangerous or deadly weapon or a
firearm in the commission of a single offense.” (§ 1170.1, subd. (f), italics added.)
Thus, section 1170.1, subdivision (f), is not limited to a defendant‟s personal use
of a firearm but includes being armed with such a weapon during the commission
of the base offense. In this matter, there is no question that defendant Yang was
armed for purposes of count 4.
       The People and the dissent reason that, once a defendant is convicted of a
violation of section 245, subdivision (b), the simple fact of that conviction is
sufficient to additionally punish the defendant under section 186.22, subdivision
(b)(1)(B) for committing that particular crime to benefit a criminal street gang, and
this additional punishment is unrelated to any involvement of a firearm in that
crime. The People and the dissent argue that although section 1170.1, subdivision
(f) can apply to a weapon enhancement that is used to qualify a defendant for a
higher tier of the gang enhancement (Rodriguez, supra, 47 Cal.4th at p. 509), it
cannot apply to the gang enhancement itself, and therefore it does not apply when
a substantive offense is used to qualify a defendant for a higher tier of the gang
enhancement. They argue, therefore, that because a conviction under section 245,
subdivision (b) is not an “enhancement” for purposes of section 1170.1,
subdivision (f), a gang enhancement based on that section 245, subdivision (b)

                                          12
conviction (§ 186.22, subd. (b)(1)(B)) is also not an “enhancement” for purposes
of section 1170.1, subdivision (f).
       Section 186.22 itself repeatedly describes its additional punishment for
serious or violent felonies as an “enhancement.” (See § 186.22, subds. (c) [“If the
court grants probation or suspends the execution of sentence imposed upon the
defendant for a violation of subdivision (a), or in cases involving a true finding of
the enhancement enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition thereof”
(italics added)], 186.22, subd. (g) [“Notwithstanding any other law, the court may
strike the additional punishment for the enhancements provided in this section . . .”
(italics added)].) Consequently, it cannot be said that the serious felony offense of
assault with a semiautomatic firearm under section 186.22, subdivision (b)(1)(B)
can be distinguished as a substantive offense and not an “enhancement,” as that
term is used by both sections 186.22 and 1170.1, subdivision (f). (See People v.
Morris (1988) 46 Cal.3d 1, 16 [“Firearm enhancements, like special
circumstances, are not substantive crimes”].)
       Furthermore, the use of a semiautomatic firearm is a necessary element of
section 245, subdivision (b). (CALJIC No. 9.02.1 [“In order to prove this crime,
each of the following elements must be proved: [¶] 1. A person was assaulted;
and [¶] 2. The assault was committed with a . . . semiautomatic firearm”].)
Without the element concerning the use of a semiautomatic firearm, the conduct
would constitute a simple assault, a crime not listed as a serious felony under
section 1192.7, subdivision (c) — a circumstance the dissent fails to address. The
assault with a semiautomatic firearm here, therefore, is a serious felony because it
involved a firearm. In other words, it cannot be doubted that being armed with a
specific kind of gun is an element of assault with a semiautomatic firearm under
section 245, subdivision (b). Without that element, the crime would not qualify

                                         13
for the additional five-year enhancement under section 186.22, subdivision
(b)(1)(B), part of the criminal gang statute.
       Accordingly, it is the element concerning the use of a semiautomatic
firearm that elevates the crime beyond a simple assault and causes it to be listed as
a serious felony, which, in turn, qualifies the conduct for a five-year serious felony
enhancement under the criminal gang statute. Similar to the circumstances in
Rodriguez, it was solely the use of a semiautomatic weapon that made the
defendant Yang‟s crime qualify as a serious felony, and he became eligible for the
five-year serious felony enhancement under section 186.22, subdivision (b)(1)(B)
solely because of the use of that semiautomatic weapon. Thus, defendant Yang
was exposed to two different sentence enhancement provisions, each pertaining to
firearm use, which implicates section 1170.1, subdivision (f)‟s prohibition against
imposing “two or more enhancements . . . for being armed with or using . . . a
firearm.”
       Finally, the People assert that our dispositional language in Rodriguez
indirectly supports their position. In Rodriguez, following our conclusion that the
sentence imposed in that matter violated section 1170.1, subdivision (f), we further
concluded that the Court of Appeal erred by ordering the trial court to strike the
imposition of punishment under section 12022.5, subdivision (a) for the
defendant‟s personal use of a firearm. Instead, we explained that the correct
remedy was to reverse the trial court‟s judgment and remand the matter back for
resentencing in order to “give the trial court an opportunity to restructure its
sentencing choices in light of our conclusion that the sentence imposed here
violated section 1170.1‟s subdivision (f).” (Rodriguez, supra, 47 Cal.4th at
p. 509.) Because simply striking the sentence under section 12022.5 would have
allowed for the greatest enhancement to be imposed by leaving intact the 10-year
enhancement under section 186.22, subdivision (b)(1)(C), the People contend our

                                          14
disposition suggests that we believed the trial court could have sentenced the
defendant on a section 186.22 gang enhancement based on another part of
subdivision (b)(1) not involving a violent felony.
       But this argument ignores the fact that the trial court in Rodriguez had
chosen the middle term of four years for the three underlying base felonies of
assault with a firearm. It also imposed sentence on both the gang enhancement
under section 186.22, subdivision (b)(1)(C) and the personal use of a firearm
enhancement under section 12022.5, subdivision (a). Because we concluded that
section 1170.1 precluded the imposition of sentence on both enhancements, this
left the opportunity for the trial court to restructure its sentence by imposing the
upper terms for the base felonies, if it was inclined to compensate for the loss of
one of the enhancements. Our decision in Rodriguez, therefore, carried no
implication regarding whether section 1170.1, subdivision (f) could apply to
nonviolent felonies under section 186.22, subdivision (b)(1) or another part of that
subdivision.
                       III. CONCLUSION AND DISPOSITION
       We conclude that a trial court is precluded from imposing both a firearm
enhancement under section 12022.5, subdivision (a)(1) and a serious felony gang
enhancement under section 186.22, subdivision (b)(1)(B) when the crime qualifies
as a serious felony solely because it involved firearm use. Because both
enhancements in the present case were based solely on defendant Yang‟s use of a




                                          15
firearm in the commission of a single offense, section 1170.1, subdivision (f)
requires that only the greater of the two enhancements may be imposed. This
conclusion is a logical extension of the holding in Rodriguez, supra, 47 Cal4th
501.
       For the foregoing reasons, the Court of Appeal‟s judgment is affirmed.


                                                     CANTIL-SAKAUYE, C. J.
WE CONCUR:

WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                        16
                     DISSENTING OPINION BY CHIN, J.



       Among other crimes, defendant Down George Yang was convicted of
assault with a semiautomatic firearm under Penal Code section 245, subdivision
(b), a crime that Penal Code section 1192.7, subdivision (c)(31), defines as a
“ „serious felony.‟ ”1 The jury also found true that he committed that crime to
benefit a criminal street gang under section 186.22, subdivision (b)(1), which
requires the court to enhance the punishment for a serious felony by an additional
five years. The majority, however, relying on section 1170.1, subdivision (f), as
interpreted in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), overrides
this clear legislative mandate and prohibits imposition of the enhanced penalty for
committing a serious felony to benefit a criminal street gang.
       I dissent. This case is entirely different from Rodriguez, supra, 47 Cal.4th
501; the difference demands a different result. In Rodriguez, imposing the gang
enhancement for a violent felony would have caused a firearm use enhancement to
be used twice, in violation of section 1170.1, subdivision (f). Here, imposing the
gang enhancement for a serious felony does not duplicate any firearm
enhancement. Accordingly, section 1170.1, subdivision (f), permits, rather than
prohibits, imposition of the gang enhancement for a serious felony.


1      All future statutory citations are to the Penal Code.



                                          1
       The issue here should be straightforward. Section 186.22, subdivision
(b)(1), requires enhanced punishment if the jury finds the defendant committed a
felony to benefit a criminal street gang. The prescribed punishment is as follows:
       “(A) Except as provided in subparagraphs (B) and (C), the person shall be
punished by an additional term of two, three, or four years at the court‟s
discretion.
       “(B) If the felony is a serious felony, as defined in subdivision (c) of
Section 1192.7, the person shall be punished by an additional term of five years.
       “(C) If the felony is a violent felony, as defined in subdivision (c) of
Section 667.5, the person shall be punished by an additional term of 10 years.”
(Italics added.)
       Subdivision (c)(31) of section 1192.7 defines “serious felony” as including
“assault with a . . . semiautomatic firearm . . . in violation of Section 245,” which
is precisely the underlying offense in this case. Because section 1192.7,
subdivision (c)(31), defines the underlying offense as a serious felony, section
186.22, subdivision (b)(1)(B), requires the trial court to impose an additional term
of five years for that offense. The statutory language could hardly be clearer.
       To avoid this statutory mandate, the majority invokes section 1170.1,
subdivision (f), as somehow prohibiting imposition of the gang enhancement for
the underlying serious felony of assault with a semiautomatic firearm. That
subdivision provides in its entirety: “When two or more enhancements may be
imposed for being armed with or using a dangerous or deadly weapon or a firearm
in the commission of a single offense, only the greatest of those enhancements
shall be imposed for that offense. This subdivision shall not limit the imposition of
any other enhancements applicable to that offense, including an enhancement for
the infliction of great bodily injury.” (Italics added.) Clearly, this provision
prohibits imposition of two or more weapon enhancements, but it also expressly

                                          2
permits imposition of other types of enhancement in addition to a weapon
enhancement. The enhancement under section 186.22, subdivision (b)(1), is a
gang enhancement, not a weapon enhancement. Therefore, section 1170.1,
subdivision (f), permits, rather than prohibits, imposition of the gang enhancement
for a serious felony.
       The majority finds somehow relevant the fact that the jury also found true
an enhancement allegation that defendant personally used a firearm in committing
the underlying offense of assault with a semiautomatic firearm. But, as noted,
section 1170.1, subdivision (f), permits imposition of other enhancements (such as
a gang enhancement) in addition to imposition of a weapon enhancement.
       This brings us to Rodriguez, supra, 47 Cal.4th 501. In Rodriguez, the
defendant was convicted of assault with a firearm under section 245, and the jury
found true a personal firearm use enhancement under section 12022.5 and a gang
enhancement under section 186.22, subdivision (b)(1). But the issue in Rodriguez
was whether the trial court could impose the 10-year enhancement for a violent
felony under section 186.22, subdivision (b)(1)(C). The underlying felony
qualified as a violent felony under section 667.5 only because it was a “felony in
which the defendant uses a firearm which use has been charged and proved as
provided in . . . Section 12022.5 . . . .” (§ 667.5, subd. (c)(8).)
       In Rodriguez, supra, 47 Cal.4th 510, there was only one weapon
enhancement (the one under § 12022.5), but, if the gang enhancement for a violent
felony were imposed, that same enhancement would be used twice — once to
impose the firearm use enhancement itself, and again to make the underlying
crime a violent felony. The question before us was whether using the same
weapon enhancement twice would violate the proscription in section 1170.1,
subdivision (f), against multiple weapon enhancements. In an opinion in which I
joined, we answered the question in the affirmative; using the same weapon

                                            3
enhancement twice would run afoul of section 1170.1, subdivision (f). Our
explanation for this conclusion distinguishes that case from this:
       “[W]hen the crime is a „violent felony, as defined in subdivision (c) of
Section 667.5,‟ section 186.22‟s subdivision (b)(1)(C) calls for additional
punishment of 10 years. Here, defendant became eligible for this 10-year
punishment only because he „use[d] a firearm which use [was] charged and proved
as provided in . . . Section 12022.5.‟ (667.5, subd. (c)(8).) Thus, defendant‟s
firearm use resulted in additional punishment not only under section 12022.5‟s
subdivision (a) (providing for additional punishment for personal use of a firearm)
but also under section 186.22‟s subdivision (b)(1)(C), for committing a violent
felony as defined in section 667.5, subdivision (c)(8) (by personal use of firearm)
to benefit a criminal street gang. Because the firearm use was punished under two
different sentence enhancement provisions, each pertaining to firearm use, section
1170.1‟s subdivision (f) requires imposition of „only the greatest of those
enhancements‟ with respect to each offense.” (Rodriguez, supra, 47 Cal.4th at p.
509, original italics.)
       Our italicizing the word “only” in this discussion from Rodriguez makes
clear that our holding was predicated on the fact that the underlying felony was
“violent” only due to the section 12022.5 enhancement for personal firearm use.
Here, in contrast to Rodriguez, defendant‟s felony conviction qualifies as a serious
felony not because of any firearm use enhancement. Instead, the underlying
crime — assault with a semiautomatic firearm — itself qualifies as a serious
felony because section 1192.7, subdivision (c)(31), makes assault with a
semiautomatic firearm a serious felony.2 A substantive crime is not an

2     The majority states that “the People concede that count 4 [i.e., assault with
a semiautomatic firearm] qualifies as a serious felony because section 1192.7,
                                                          (footnote continued on next page)


                                          4
enhancement. (People v. Morris (1988) 46 Cal.3d 1, 16.) Accordingly, there
simply is no dual use of a weapon enhancement.
        Not only does the statutory language mandate imposition of the gang
enhancement for a serious felony, it makes eminent sense for the Legislature to
prescribe separate punishment for (1) the underlying crime of assault with a
semiautomatic firearm, (2) for defendant‟s personal use of a firearm in the
commission of that crime, and (3) for defendant‟s committing a serious felony to
benefit a criminal street gang. Each punishes a different aspect of defendant‟s
criminal behavior.
        Normally, the firearm use enhancement may not be imposed if “use of a
firearm is an element of that offense.” (§ 12022.5, subd. (a).) But section
12022.5, subdivision (d), states that notwithstanding this limitation, “the additional
term provided by this section shall be imposed for any violation of Section 245 if a
firearm is used . . . .”
        The majority seems bemused by the fact the Legislature permits a firearm
use enhancement to attach to a conviction for assault with a firearm. It states that
“despite the fact that defendant Yang‟s section 245, subdivision (b) violation
included the element of the use of a semiautomatic firearm, his crime is not


(footnote continued from previous page)

subdivision (c)(31) makes assault with a semiautomatic forearm a serious felony.”
(Maj. opn., ante, at p. 11.) Rather than being a concession, however, stressing that
the underlying felony is itself defined as serious and is not, as in Rodriguez, supra,
47 Cal.4th 501, dependent on a firearm use enhancement to qualify as violent, is
the centerpiece of the People‟s argument — and of mine. Because the underlying
substantive offense, itself defined as a serious felony, is not an enhancement, there
is no dual use of a weapon enhancement.
        It is an argument the majority never confronts, choosing instead to describe
it as a concession and then ignore it.



                                          5
exempt from enhancement under section 12022.5.” (Maj. opn., ante, at p. 3,
fn. 3.) But the explanation for the Legislature‟s action is simple. As we recently
explained, the firearm use enhancement does not duplicate the underlying offense
of assault with a firearm. “A defendant may be vicariously guilty of assault with a
firearm even if that defendant did not personally use the firearm. [Citation.] But
the firearm-use enhancement applies only to a defendant who „personally uses‟ the
firearm. [Citations.] Thus, the enhancement does not attach to everyone guilty of
assault with a firearm but only to those who personally use the firearm.” (People
v. Ahmed (2011) 53 Cal.4th 156, 161-162, fn. 2.)
       Thus, it is logical for the Legislature to punish a defendant‟s personal
firearm use in addition to punishing the underlying crime of assault with a firearm,
which does not require personal use. Similarly, it is logical for the Legislature to
prescribe additional punishment when a defendant commits the same serious
felony to benefit a criminal street gang. Section 186.22, subdivision (b)(1)(B),
does exactly that and no more.
       The majority misunderstands the difference between a substantive offense
and an enhancement, and the difference between the elements of the underlying
crime of assault with a firearm and the personal firearm use enhancement. It
concludes the introductory portion of its opinion by stating that “because both
enhancements . . . depend on defendant‟s firearm use, we conclude that section
1170.1, subdivision (f) bars the imposition of both enhancements.” (Maj. opn.,
ante, at p. 2.) But the gang enhancement for a serious felony is based solely on
defendant‟s conviction of assault with a semiautomatic firearm. That conviction
does not depend on defendant‟s firearm use. (People v. Ahmed, supra, 53 Cal.4th
at pp. 161-162, fn. 2.)
       Similarly, the majority later states that “the crime would qualify as a
serious felony solely because it involved firearm use,” and that “as the dissent fails

                                          6
to recognize, defendant‟s crime qualifies as a serious felony solely because it
involved a firearm.” (Maj. opn., ante, at pp. 9-10.) On the contrary, the
underlying crime — assault with a semiautomatic firearm — qualifies as a serious
felony because section 1192.7, subdivision (c)(31), specifically defines it as
serious. Certainly, that underlying crime “involved” a firearm, but the underlying
crime is not an enhancement. The only weapon enhancement that exists here does
not involve merely a firearm or firearm use, but instead involves the defendant‟s
personal use of a firearm.
       The majority also states: “Similar to the circumstances in Rodriguez, it was
solely the use of a semiautomatic weapon that made . . . defendant Yang‟s crime
qualify as a serious felony, and he became eligible for the five-year serious felony
enhancement under section 186.22, subdivision (b)(1)(B) solely because of the use
of that semiautomatic weapon.” (Maj. opn., ante, at p. 14.) But defendant‟s crime
inherently qualifies as a serious felony under section 1192.7, subdivision (c)(31),
and, unlike Rodriguez, that crime does not depend on any weapon enhancement.
       Recognizing, as it must, that section 1170.1, subdivision (f)‟s limitation
applies only to “two or more enhancements” (italics added), the majority opinion
states that “[s]ection 186.22 itself repeatedly describes its additional punishment
for serious or violent felonies as an „enhancement.‟ ” (Maj. opn., ante, at p. 13.)
The statement is obviously correct; the additional punishment under section
186.22, subdivision (b)(1), is an enhancement. But that enhancement is for
committing the underlying crime to benefit a criminal street gang; it is a gang
enhancement, not a weapon enhancement. Section 1170.1, subdivision (f),
permits imposition of a gang enhancement in addition to a weapon enhancement.3

3    The majority seems concerned that the prosecution charged that defendant
committed the underlying crime to benefit a criminal street gang but did not
                                                           (footnote continued on next page)


                                          7
        If, as it does, the majority prohibits imposition of the enhancement for a
serious felony, then at least it should remand the matter for the trial court to
impose the lower enhancement for ordinary felonies under section 186.22,
subdivision (b)(1)(A). Surely the Legislature intended some punishment for
committing an assault with a firearm to benefit a criminal street gang. Not
permitting any additional punishment would judicially carve out an exception to
the gang enhancement for assault with a firearm, which cannot be what the
Legislature intended. Such an interpretation would be especially perverse —
assault with a firearm is among the most common of gang-related crimes.
        In short, because the felony of assault with a semiautomatic firearm is
inherently serious under section 1192.7, subdivision (c)(31), because defendant
was convicted of that crime, and because there is neither a second weapon
enhancement nor (as in Rodriguez, supra, 47 Cal.4th 501) dual use of one weapon




(footnote continued from previous page)

additionally allege which of the punishments the trial court should impose. (Maj.
opn., ante, at p. 9, fn. 5.) I see no problem, and neither do the parties. They
correctly agree that the charging document may simply allege the gang
enhancement under section 186.22, subdivision (b)(1), and leave it to the court to
impose the correct punishment if the jury finds the allegation true. Whether the
defendant committed the underlying crime to benefit a criminal street gang is a
factual question for the jury to decide. But which of the three possible
punishments to impose is a legal question for the court to decide. In this case, for
example, section 1192.7, subdivision (c)(31), makes the underlying conviction for
assault with a semiautomatic firearm a serious felony as a matter of law, not fact.
       Charging documents do not normally allege what punishment the court
should impose if the jury finds the defendant guilty or finds an enhancement
allegation true. No reason appears to impose such a requirement here.



                                           8
enhancement, the trial court was required to impose the enhancement for
committing a serious felony to benefit a criminal street gang under section 186.22,
subdivision (b)(1)(B).
      Accordingly, I dissent.
                                                       CHIN, J.




                                         9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Le
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 205 Cal.App.4th 739
Rehearing Granted

__________________________________________________________________________________

Opinion No. S202921
Date Filed: June 15, 2015
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Charles G. Rogers

__________________________________________________________________________________

Counsel:

Sharon M. Jones and Arthur Martin, under appointments by the Supreme Court, for Defendant and
Appellant Down George Yang.

Laura P. Gordon, under appointment by the Supreme Court, for Defendant and Appellant Erik Hung Le.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General; Bonnie M.
Dumanis, District Attorney, Laura Tanney, James E. Atkins, Gary W. Schons, Craig E. Fisher and Frank
Jackson, Deputy District Attorneys, for Plaintiff and Respondent.




                                                  1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Arthur Martin
P.O. Box 5084
Klamath Falls, OR 97601
(541) 273-8738

Frank Jackson
Deputy District Attorney
330 W. Broadway, Suite 860
San Diego, CA 92101
(619) 531-4135




                                               2
