Filed 10/31/17

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                           DIVISION THREE


THE PEOPLE,                              B270470

       Plaintiff and Respondent,         Los Angeles County
                                         Super. Ct. No. BA372403
       v.

TREVAUN IAN FRANCIS,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Affirmed as modified.
      Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kathleen A. Kenealy, Acting Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Margaret E. Maxwell and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

                 _______________________________________
                        INTRODUCTION

      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 1 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 the
serious-felony gang enhancement. (People v. Le (2015) 61 Cal.4th
416 (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.


1     In some court documents, defendant is referred to as Trevaun
Renald Francis.




                                 2
      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


2     All undesignated statutory references are to the Penal Code.
3      Effective January 1, 2012, former section 12034 (count 3) was
recodified without substantive change at section 26100. (Stats. 2010,
ch. 711, § 4 [repealed]; Stats. 2010, ch. 711, § 6 [reenacted].)
4      Count 2 only applied to co-defendant Jean Palacios, who is not a
party to this appeal.
5      Although the on-bail allegation pertaining to case no. YJ33464
was neither found true nor imposed by the court, the minute orders do
not reflect that it was dismissed. Upon issuance of our remittitur, the
trial should correct the minute orders to reflect dismissal of this
allegation.




                                   3
been alleged and proven under section 186.22, subdivision
(b)(1)(B), was barred by section 1170.1, subdivision (f). (Le,
supra, 61 Cal.4th at p. 425.) 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).
       The 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.



6     On our own motion, we take judicial notice of two court records
in superior court case no. BA369882—the abstract of judgment filed on
May 15, 2017, and the minute order of May 4, 2017. (Evid. Code,
§§ 452, subd. (d)(1), 459, subd. (a).) In light of defendant’s subsequent
no-contest plea in case no. BA369882, the court’s failure to stay
execution of the on-bail enhancement in this case was harmless.
(§ 12022.1, subd. (d) [on-bail enhancement requires conviction of both
original and new offenses]; People v. Meloney (2003) 30 Cal.4th 1145,
1162–1163 [where the enhancement case is tried before the bail case,
court must stay enhancement pending conviction in original case].)




                                    4
                          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
(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.)
       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 subdivision (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.



7     All undesignated subdivision references are to section 186.22.




                                  5
1.    Standard of Review
       Subdivision (b)(1)(A)’s application to serious or violent
felonies is an issue of “statutory interpretation that we must
consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71.) As
with any case involving statutory interpretation, our primary
goal is to ascertain and effectuate the lawmakers’ intent. (People
v. Park (2013) 56 Cal.4th 782, 796.) To determine intent, we first
examine the statutory language and give the words their
ordinary meaning. (Ibid.) “If the language is unambiguous,
there is no need for further construction.” (People v. Gonzales
(2017) 2 Cal.5th 858, 868.)
       We adhere to the plain language of the statute “unless
doing so would lead to absurd results the Legislature could not
have intended.” (People v. Birkett (1999) 21 Cal.4th 226, 231.)
But even that exception is exceedingly narrow. We cannot
“ignore the actual words of the statute in an attempt to vindicate
our perception of the Legislature’s purpose in enacting the law.”
(Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985,
993.)
2.    Plain Meaning
      The STEP Act “imposes various punishments on
individuals who commit gang-related crimes—including a
sentencing enhancement on those who commit felonies ‘for the
benefit of, at the direction of, or in association with any criminal
street gang.’ (Pen. Code, § 186.22, subd. (b).)” (People v. Prunty,
supra, 62 Cal.4th at p. 67.) Subdivision (b) provides that any
such defendant:

      (b)(1) [e]xcept as provided in paragraphs (4) and
             (5), … shall, upon conviction of that felony, in




                                  6
             addition and consecutive to the punishment
             prescribed for the felony or attempted felony
             of which he or she has been convicted, be
             punished 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.
(Emphasis added.) Paragraphs (4) and (5) provide that a
defendant convicted of certain serious or violent felonies “shall”
receive an indeterminate life term with a specified minimum
parole eligibility date. (Subds. (b)(4), (b)(5).)
       This series of interlocking provisions is the mechanism by
which subdivision (b) attaches specific penalties to specific types
of crimes—two, three, or four years for a basic felony
(subd. (b)(1)(A)); five years for a serious felony (subd. (b)(1)(B));
10 years for a violent felony (subd. (b)(1)(C)); and a life sentence
with a specified minimum parole term for enumerated serious or
violent felonies (subds. (b)(4), (b)(5)). Each penalty is mandatory.
(Le, supra, 61 Cal.4th at p. 423 [subdivision (b)(1) enhancements
“are mandatory—all three provisions specify that the additional
punishment ‘shall’ be imposed.”].) The penalty applicable to a




                                  7
given felony is not a matter of prosecutorial charging discretion
or a sentencing choice available to the trial court. In this way,
subdivision (b) establishes mutually exclusive “methods for
punishing felons whose crimes were committed for the benefit of
a criminal street gang.” (People v. Lopez (2005) 34 Cal.4th 1002,
1004 (Lopez).)
       The statutory language is clear and unambiguous.
Accordingly, it requires no interpretation or construction.
Subdivision (b)(1) applies to every gang crime except those
designated in subdivisions (b)(4) and (b)(5). Subdivision (b)(1)(A)
applies to all remaining eligible felonies “[e]xcept as provided in
subparagraphs (B) and (C).” Subdivision (b)(1)(B) provides that
“a serious felony … shall be punished by an additional term of
five years.” Subdivision (b)(1)(C), in turn, provides that “a violent
felony … shall be punished by an additional term of 10 years.”
While there is discretion embedded within subdivision (b)(1)(A)
for felonies falling within that provision, a trial court has no
discretion to impose a term under subdivision (b)(1)(A) for a
felony that falls under (B) or (C). Here, defendant was convicted
of a serious felony. 8 As such, the STEP Act required the court to
impose a gang enhancement under subdivision (b)(1)(B)—
regardless of whether section 1170.1, subdivision (f), would
ultimately limit it. The Act did not authorize the court to impose
an enhancement under subdivision (b)(1)(A).
       In general, a court exceeds its jurisdiction when it imposes
an unauthorized or legally impossible sentence. (People v. Scott

8      Defendant’s conviction for assault with a semiautomatic firearm
(§ 245, subd. (b)) qualified as a serious felony under section 1192.7,
subdivisions (c)(8), (c)(23), and (c)(31). The jury found the subdivision
(b)(1)(B) allegation true.




                                    8
(1994) 9 Cal.4th 331, 354 [a sentence is unauthorized if “it could
not lawfully be imposed under any circumstance in the particular
case.”]; see People v. Soriano (1992) 4 Cal.App.4th 781, 784–785
[court lacked jurisdiction to sentence defendant for attempting to
file a forged instrument where the forgery (a death certificate)
was not an instrument].) Here, the People acknowledge that
subdivision (b)(1)(A) applies only to non-serious, nonviolent
felonies. And they concede that defendant was convicted of a
serious felony. Yet they have offered no legal theory under which
a court may disregard the statute’s plain language—language
that explicitly exempts serious, violent crimes from (b)(1)(A)—
and impose an enhancement where none is authorized. Nor have
the People offered a legal theory under which the court may
convert a serious, violent felony into a non-serious, nonviolent
one. 9
        “Following the plain language of section 186.22, subdivision
(b)(1) does not produce an absurd result; the most that can be
said is that it will not increase the defendant’s actual custody
time in all cases where a gang allegation is found true.” (People
v. Johnson (2003) 109 Cal.App.4th 1230, 1238.) As noted above,
subdivision (b)(1)(B) provides that when a gang allegation has
been found true, a defendant convicted of a serious felony must
serve “an additional term of five years.” In many cases, the


9      Instead, the People observe that unlike a (b)(1)(B) enhancement,
the (b)(1)(A) enhancement was not predicated on personal firearm use,
and as such, did not violate the multiple-enhancement prohibition of
section 1170.1, subdivision (f)—the provision at issue in Rodriguez and
Le. We offer no opinion of that question. Plainly, it is not enough for
section 1170.1 to allow the enhancement; the enhancement itself must
also apply.




                                   9
application of that enhancement will increase the time a
defendant actually spends in custody. In other cases—such as
when the court has already imposed 10 additional years for a
firearm enhancement—it will not necessarily do so.
       This is not an unreasonable result. The Legislature knows
how to draft statutory exceptions. Indeed, the firearm
enhancement imposed in this case is itself rooted in an exception
to the general rule barring such enhancements. (Le, supra, 61
Cal.4th at p. 420, fn. 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).)”].)
That exception, in turn, is circumscribed by section 1170.1’s
prohibition on multiple firearm enhancements—and both
provisions are consistent with section 12022.53.
       Section 12022.53 subjects “offenders who personally
used … a firearm in committing a gang-related offense” to both a
personal-use enhancement and a gang enhancement—but that
statute only applies to specifically-enumerated serious and
violent felonies. (People v. Brookfield (2009) 47 Cal.4th 583, 593–
594.) Section 245 is not among them. (§ 12022.53, subd. (a).) If
the Legislature wishes to reconsider the limits of any of these
provisions, it may do so. (People v. Harper (2003) 109
Cal.App.4th 520, 524 [“ ‘Courts may not rewrite statutes to
supply omitted terms or to conform to an assumed, unexpressed,
legislative intent. [Citation.] It is, of course, up to the
Legislature, and not the courts, to rewrite statutes.’
[Citations.]”].) Until it does, however, it is not absurd for the
courts to apply subdivision (b)(1)(A) as written.




                                10
3.    Statutory Consistency
       Principles of statutory consistency and stare decisis also
require us to follow the plain language of subdivision (b)(1)(A).
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) Although we look first at the words of a statute, we do
not consider the statutory language in isolation; rather, we read
the statute “as a whole, harmonizing the various elements by
considering each clause and section in the context of the overall
statutory framework.” (People v. Jenkins (1995) 10 Cal.4th 234,
246.) We construe all parts of a statute together, without
according undue importance to a single or isolated portion.
(Cooley v. Superior Court (2002) 29 Cal.4th 228.) Thus, a “ ‘word
or phrase will be given the same meaning each time it appears in
a statute.’ ” (Id. at p. 255.) “Significance should be given, if
possible, to every word of an act.” (Delaney v. Superior Court
(1990) 50 Cal.3d 785, 798.) “Conversely, a construction that
renders a word surplusage should be avoided.” (Id. at p. 799.)
       As we have discussed, subdivision (b) contains a series of
interlocking provisions. The excepting clause in subdivision
(b)(1)(A) mirrors the excepting clause in subdivision (b)(1).
(Compare subd. (b)(1) [enhancement applies “[e]xcept as provided
in paragraphs (4) and (5)”] with subd. (b)(1)(A) [subparagraph
applies “[e]xcept as provided in subparagraphs (B) and (C)”].)
And our interpretation of subdivision (b)(1)(A) is consistent with
the California Supreme Court’s interpretation of the parallel
language in subdivision (b)(1). (Lopez, supra, 34 Cal.4th 1002.)
       In Lopez, the court addressed whether a gang-related first-
degree murder could be enhanced by 10 years as a violent felony
under subdivision (b)(l)(C), “or whether such a murder falls
within that subdivision’s excepting clause and is governed




                               11
instead by the 15-year minimum parole eligibility term” of
subdivision (b)(5). (Lopez, supra, 34 Cal.4th at p. 1006.) Because
a 15-year minimum eligible parole date would have little
practical effect on a defendant who, because of the murder
conviction, was already parole-ineligible for 25 years (§ 190,
subd. (a)), the government was understandably interested in
applying the 10-year subdivision (b)(l)(C) enhancement instead.
(Lopez, at pp. 1008–1009.) 10 The defendant in Lopez argued “that
the statutory language is plain and its meaning unmistakable.”
(Id. at p. 1006.) He explained that subdivision (b)(1) authorizes
additional punishment “ ‘[e]xcept as provided in paragraphs (4)
and (5) … .’ ” Paragraph (5) applies when the felony is
“punishable by imprisonment in the state prison for life.”
(Subd. (b)(5).) “[F]irst degree murder, which is punishable by
‘imprisonment in the state prison for a term of 25 years to life’
(§ 190, subd. (a)), is such an offense.” (Lopez, at p. 1006.)
       A unanimous court agreed. The court held, based on the
plain language of section 186.22, that where a gang-related
felony falls within subdivision (b)(5)’s alternative penalty

10      The minimum eligible parole date (MEPD) is the earliest date
on which a life prisoner may legally be released on parole. (§ 3046;
Cal. Code Regs., tit. 15, § 2000, subd. (b)(67).) An inmate is entitled to
a parole suitability hearing one year before his MEPD. (§ 3041,
subd. (a)(2).) While a subdivision (b)(5) enhancement could be a factor
tending to show a defendant is unsuitable for parole (Cal. Code Regs.,
tit. 15, § 2402; People v. Johnson, supra, 109 Cal.App.4th at p. 1238), a
subdivision (b)(1)(C) enhancement would postpone the inmate’s
suitability hearing for 10 more years. (§ 669, subd. (a) [term for
consecutive, determinate enhancement served first and not credited
toward indeterminate MEPD].) That is, subdivision (b)(1)(C) would
increase the defendant’s sentence to 35 years to life; subdivision (b)(5)
would not.




                                   12
provision, the trial court must sentence the defendant under
subdivision (b)(5). It cannot impose a (b)(1)(C) enhancement
instead. Thus, the excepting clause in subdivision (b)(1) barred
the trial court from imposing a gang enhancement—specifically
(b)(l)(C)—to maximize the defendant’s overall sentence. (Lopez,
supra, 34 Cal.4th at pp. 1004, 1006; accord, People v. Johnson,
supra, 109 Cal.App.4th at pp. 1236–1238; People v. Harper,
supra, 109 Cal.App.4th at p. 525; People v. Ortiz (1997) 57
Cal.App.4th 480, 485–486.)
       Since Lopez construed subdivision (b)(1) in 2005, the
Legislature has amended the STEP Act several times. It has
never changed the excepting clause in subdivision (b)(1). “When
as here ‘ “a statute has been construed by judicial decision, and
that construction is not altered by subsequent legislation, it must
be presumed that the Legislature is aware of the judicial
construction and approves of it.” [Citations.] “There is a strong
presumption that when the Legislature reenacts a statute which
has been judicially construed it adopts the construction placed on
the statute by the courts.” ’ [Citation.]” (People v. Meloney,
supra, 30 Cal.4th at p. 1161.)
4.    Remedy
      4.1.   We may modify the judgment on appeal.
      The typical remedy under Rodriguez is to reverse and
remand for resentencing. (Rodriguez, supra, 47 Cal.4th at
p. 509.) In Rodriguez, however, the trial court had imposed the
middle term for the three underlying felonies. Resentencing,
therefore, provided the court with “the opportunity … 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




                                 13
enhancements.” (Le, supra, 61 Cal.4th at p. 428.) In this case, by
contrast, the trial court imposed the maximum possible sentence.
As there are no sentencing choices to restructure, it is
appropriate for us to modify the sentence on appeal. (§ 1260
[appellate court’s power to modify judgments]; People v. Rogers
(2009) 46 Cal.4th 1136, 1174.)
      We therefore modify the judgment as follows. The gang
enhancement imposed on count 4 under section 186.22,
subdivision (b)(1)(A), is modified to an enhancement for
subdivision (b)(1)(B). The subdivision (b)(1)(B) enhancement is
stayed.
      4.2.   The abstract of judgment in case BA369882 must
             be amended to reflect the modified sentence.
       Under California Rules of Court, rule 4.452, when “a
determinate sentence is imposed under section 1170.1(a)
consecutive to one or more determinate sentences imposed
previously in the same court or in other courts, the court in the
current case must pronounce a single aggregate term, as defined
in section 1170.1(a), stating the result of combining the previous
and current sentences.” Though the abstract of judgment in case
no. BA369882 complies with that rule, it must be amended to
reflect the modified judgment in this case.
       As discussed above, on February 17, 2016, defendant was
sentenced in the current case (no. BA372403) to an aggregate
term of 25 years in state prison. On May 1, 2017, defendant pled
no contest in case no. BA369882. On May 4, 2017, he was
sentenced in that case to an aggregate term of 11 years in state
prison, to run consecutively to the sentence in this case. The
court imposed concurrent sentences for the remaining counts and
enhancements.




                                14
       The abstract of judgment in case no. BA369882 properly
includes the sentence imposed in the current case
(no. BA372403), which it designates as count 4N. Upon issuance
of remittitur, the incomplete sentence for count 4N and the total
time imposed on that abstract of judgment must be updated to
reflect defendant’s modified sentence. 11




11     We note that the abstract of judgment in case no. BA369882
contains a clerical error for count 5. According to the minute order of
May 4, 2017, the court imposed four years for count 5—the mid-term
of two years plus two years for the on-bail enhancement, to run
concurrently to the rest of the sentence. The abstract erroneously
indicates that the court imposed six years for count 5—the mid-term of
four years plus two years for the on-bail enhancement. (People v.
Mitchell (2001) 26 Cal.4th 181, 185 [“An abstract of judgment is not
the judgment of conviction; it does not control if different from the trial
court’s oral judgment and may not add to or modify the judgment it
purports to digest or summarize.”].)




                                    15
                           DISPOSITION

      The judgment is modified as follows. The gang
enhancement imposed on count 4 under Penal Code section
186.22, subdivision (b)(1)(A), is modified to an enhancement for
subdivision (b)(1)(B). The subdivision (b)(1)(B) enhancement is
stayed. As modified, the judgment is affirmed.
      Upon issuance of our remittitur, the trial court is directed
to prepare corrected minute orders consistent with the views
expressed in this opinion, amend the abstract of judgment in this
case and the abstract of judgment in case no. BA369882 to reflect
the judgment as modified, and to send certified copies of the
amended abstracts of judgment to the Department of Corrections
and Rehabilitation. The clerk of this court is directed to send a
copy of the opinion and remittitur to the Department of
Corrections and Rehabilitation. (Cal. Rules of Court, rule
8.272(d)(2).)

               CERTIFIED FOR PUBLICATION

                                                           LAVIN, J.
WE CONCUR:


      EDMON, P. J.


      DHANIDINA, J. *




*     Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.




                                   16
