Filed 6/25/13 P. v. Rouston CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060911

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD234128)

GEORGE ROUSTON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Theodore

M. Weathers, Judge. Affirmed.

         Patrick Morgan Ford for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

         George Rouston, a minor charged as an adult, pled guilty to assault with a

semiautomatic firearm, and admitted enhancements for committing the crime for the

benefit of a gang, personal use of a firearm, and personal infliction of great bodily injury.
On appeal, he asserts the trial court improperly punished him multiple times for his single

firearm use. We find no reversible error and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Defendant's offense, as summarized in the probation report, occurred on April 6,

2011, when defendant and several other males encountered the victim (Christopher

Morales) and one or more other males. During the encounter, defendant pulled out a gun

and fired several shots, and then he and his companions fled the scene. Morales was shot

three times; one of the bullets caused him to lose the ability to feel or move his leg and he

was required to undergo surgery.

       Morales told the police that at the time of the crime he was "hanging out with his

friends"; he ran when he heard gunshots and fell when he was shot; he had no gang

affiliation; and he did not know who shot him or why he was shot.

       Defendant was identified as the shooter by an anonymous caller to the police and

by two witnesses at a photo lineup. Defendant was arrested at the home where he resided

with his grandmother. Defendant initially denied knowledge of the shooting, but

admitted his involvement when told that he had been identified by witnesses.

       According to defendant, he and Morales were members of rival gangs that were

engaged in disputes about "tagging" and disrespect of defendant's gang. Defendant heard

that Morales was planning to shoot defendant. Fearing for his life and the life of his

family, defendant obtained a gun and went to the area of the offense to talk to Morales.

When defendant encountered Morales and asked him " 'What's up?' " Morales started



                                             2
running towards defendant with his hand behind his back. Defendant thought Morales

"had something" so defendant pulled his gun from his waistband and started shooting.

       Defendant told the probation officer he did not intend to shoot Morales but just to

point the gun at him to show he was not " 'messing' " and did not want anyone to hurt his

family. At the time of the offense he was under the influence of methamphetamine and

alcohol; he was not in his right state of mind; and he "was stupid and did not mean to

shoot" Morales.

       The nature of defendant's alleged offense permitted him to be charged as an adult

in criminal court without a finding by a juvenile court that he was unfit to be dealt with in

juvenile court. (Welf. & Inst. Code, § 707, subd. (d)(2); see Manduley v. Superior Court

(2002) 27 Cal.4th 537, 549-550.)1 Defendant was charged as an adult in criminal court

with attempted murder (count 1) and assault with a semiautomatic firearm (count 2, Pen.

Code,2 § 245, subd. (b)), and with three enhancement allegations: (1) committing the

offense for the benefit of a gang (§ 186.22, subd. (b)(1)); (2) personal use of a firearm

(§ 12022.5, subds. (a), (d)); and (3) personal infliction of great bodily injury (§ 12022.7,

subd. (a)).

       On July 28, 2011, defendant pled guilty to assault with a semiautomatic firearm

and admitted the three enhancements. He also admitted that he personally used a firearm



1      Charges may be filed directly in criminal court if the minor is at least 14 years old
and the alleged offense involves a statutorily-specified circumstance, including personal
use of a firearm. (Welf. & Inst. Code, § 707, subd. (d)(2)(B).)

2      Subsequent unspecified statutory references are to the Penal Code.
                                              3
within the meaning of the Welfare and Institutions Code provision permitting him to be

charged as an adult. (Welf. & Inst. Code, § 707, subd. (d)(2)(B); see fn. 1, ante.) The

prosecution agreed to dismiss the attempted murder charge and to a sentence between 10

to 20 years.

       At sentencing, the prosecution (with the probation officer's concurrence) proposed

a 20-year sentence, whereas defense counsel requested a 10-year sentence. In support of

their positions, the parties elaborated at length about their differing views on the

mitigating and aggravating factors operative during the offense. After listening to the

parties' arguments and statements from defendant's family members, the court imposed a

16-year sentence, consisting of: (1) the lower three-year term for assault with a

semiautomatic firearm; (2) the lower three-year term for the personal gun use

enhancement; and (3) the 10-year term for the gang enhancement. The court explained

that it selected the lower three-year terms for the assault offense and gun use

enhancement based on defendant's youthful age, lack of significant criminal history, and

early acceptance of responsibility. It imposed the 10-year term for the gang enhancement

based on defendant's personal use of a firearm, which made the offense a violent felony

triggering the 10-year gang enhancement term. Finally, for the personal infliction of

great bodily injury enhancement, the court exercised its discretion under section 1385 to

strike the punishment for this enhancement in the interests of justice, reasoning that it had

"adequate sentencing parameters" without additional custody based on this enhancement.




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                                      DISCUSSION

         I. Punishment for Both Gang Enhancement and Personal Firearm Use

       Defendant argues the trial court erred by imposing both the 10-year gang benefit

enhancement and the personal use of a firearm enhancement because both enhancements

were based on his personal use of a firearm. As we shall explain, there was no reversible

error because the 10-year gang enhancement term could properly be premised on

defendant's personal infliction of great bodily injury without reliance on his personal gun

use.

       Section 654 generally provides that when an act or omission is punishable under

different statutory provisions, the act or omission may be punished only once.3

Specifically addressing punishment for enhancements based on gun use and great bodily

injury, section 1170.1, subdivisions (f) and (g), provides that a gun use enhancement may

be imposed only once for a single offense, and, likewise, a great bodily injury

enhancement may be imposed only once for the offense. However, section 1170.1,

subdivisions (f) and (g), also provides that the imposition of a gun use enhancement does




3      Section 654 states in relevant part: "(a) An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. . . ."

                                             5
not preclude the imposition of a great bodily injury enhancement for a single offense.4

       Based on the express terms of section 1170.1, subdivisions (f) and (g), in People v.

Ahmed (2011) 53 Cal.4th 156, the court held the trial court did not err in imposing both a

gun use enhancement and a great bodily injury enhancement for the defendant's single act

of firing a gun. (Id. at pp. 159-160, 164, 168.) Further, the Ahmed court concluded that

when a statute specifically permits imposition of multiple enhancements, that specific

statute prevails over the more general statutory provision set forth in section 654 that

prohibits double punishment for a single act. (Ahmed, supra, at pp. 159-161, 163.)

Ahmed explained: "[T]he personal use of a firearm was an aspect of [the single act of

shooting] that, the Legislature has determined, warrants additional punishment; similarly,

the infliction of great bodily injury is a different aspect of that act that, the Legislature

has determined, also warrants additional punishment." (Id. at pp. 163-164.)


4       Section 1170.1 states in relevant part:
        "(f) 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.
        "(g) When two or more enhancements may be imposed for the infliction of great
bodily injury on the same victim 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 being armed with or using a dangerous or deadly weapon or a firearm."
        We note that section 1170.1's statement that only the greatest enhancement "shall
be imposed" in effect means imposed and executed given that the appropriate procedure
is for the court to impose the sentence for both enhancements, and then stay execution of
the shorter sentence. (People v. Vega (2013) 214 Cal.App.4th 1387, 1395-1396; see
People v. Gonzalez (2008) 43 Cal.4th 1118, 1122-1123, 1125-1126, 1130.)
                                               6
       The gang enhancement statute sets forth varying levels of imprisonment,

depending on the nature of the felony of which the defendant is convicted. At the lowest

level, the gang enhancement statute provides for a two-, three-, or four-year term.

(§ 186.22, subd. (b)(1)(A).) The term is elevated to five years for statutorily-defined

serious felonies (§ 186.22, subd. (b)(1)(B)), and it is elevated to 10 years for statutorily-

defined violent felonies (§ 186.22, subd. (b)(1)(C)). The statutorily-defined violent

felonies that support the 10-year term include felonies for which personal use of a firearm

has been charged and proven, or for which personal infliction of great bodily injury has

been charged and proven. (§ 667.5, subd. (c)(8).)

       Based on section 1170.1, subdivision (f)'s limitation on multiple gun use

enhancements, the trial court erred by imposing punishment pursuant to two statutes: (1)

the personal firearm use statute (§ 12022.5, subd. (a)); and (2) the 10-year gang

enhancement statute premised on personal firearm use. (People v. Rodriguez (2009) 47

Cal.4th 501, 504-505, 508-509.) However, defendant was also charged with an

enhancement for personal infliction of great bodily injury, and he admitted this allegation

in his guilty plea. Thus, use of the 10-year gang enhancement term was additionally

available premised on the great bodily injury aspect of defendant's offense. Further, the

great bodily injury aspect was available to elevate the gang enhancement to the 10-year

term because the court did not impose punishment based on the great bodily injury

enhancement under section 12022.7, but rather struck this punishment in the furtherance

of justice under section 1385. (People v. Vega, supra, 214 Cal.App.4th at p. 1395 [court

did not err in imposing punishment based on both firearm use enhancement and 10-year

                                              7
gang enhancement because substantive offense was violent felony due to both gun use

and infliction of great bodily injury, and sentence on great bodily injury enhancement

was stayed].)

       Given the availability of the great bodily injury aspect to support application of the

10-year gang enhancement term, there is no reasonable probability the outcome would

have been different absent the court's erroneous reliance on the firearm use for the 10-

year gang enhancement term. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.)

The record shows the trial court selected the 16-year total sentence as the appropriate

term of custody that defendant should receive for his offense. We have no doubt that if

the court had realized it could not rely on defendant's firearm use for both the gang

enhancement and the firearm use enhancement, it would have premised imposition of the

10-year gang enhancement term on the great bodily injury aspect of the offense so as to

permit imposition of punishment for the section 12022.5 firearm use enhancement.5

       The court's erroneous reference to the firearm use for the 10-year gang

enhancement term was harmless. Because the 10-year gang enhancement term was

properly applicable due to the great bodily injury aspect of the crime, the court did not err

in imposing punishment based on both the 10-year gang enhancement statute and the

firearm use enhancement statute.




5      Indeed, the probation report and the prosecutor's sentencing statement cite the
great bodily injury enhancement as establishing the offense as a violent felony for the 10-
year gang enhancement term, and suggest imposing and executing this term while staying
the sentence on the great bodily injury enhancement.
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               II. Placement of Case in Adult Court Based on Firearm Use

                  and Enhancement of Sentence Based on Firearm Use

       Defendant argues the trial court violated section 654 and due process/fundamental

fairness by using the fact of his personal firearm use to both (1) try him as an adult and

(2) enhance his sentence. Defendant contends that placing his case in adult court

constitutes punishment within the meaning of section 654's proscription against double

punishment because juvenile court focuses on rehabilitation whereas criminal court

focuses on punishment.

       We agree with defendant that adjudicating a minor's offense in criminal, rather

than juvenile, court can readily subject the minor to harsher punishment. (See Ramona R.

v. Superior Court (1985) 37 Cal.3d 802, 810-811; Marcus W. v. Superior Court (2002)

98 Cal.App.4th 36, 41.) Nevertheless, we are not persuaded by defendant's assertion that

the placement of his case in adult court constitutes punishment under section 654.

Section 654's prohibition against double punishment is designed to ensure that a

defendant's punishment is commensurate with his or her culpability. (People v. Sanders

(2012) 55 Cal.4th 731, 742.) Thus, generally a defendant should not be punished twice

for a single physical act (People v. Jones (2012) 54 Cal.4th 350, 358), nor should a

defendant be punished twice for a course of conduct when the defendant entertained a

single criminal objective (People v. Latimer (1993) 5 Cal.4th 1203, 1208).

       The decision to try a minor as an adult constitutes a jurisdictional selection that

exposes the minor to potentially elevated punishment; however, it does not actually

adjudicate or impose any punishment. For example, here, the decision to try defendant as

                                              9
an adult because he used a firearm did not determine his punishment; rather, his

punishment was resolved via the plea bargaining process and then by the trial court's

selection of a sentence within the agreed-upon range. Defendant was not punished for his

firearm use when his case was brought in adult court; rather, he was exposed to a

potentially longer punishment for the firearm use due to the adult court placement, and

then punishment was actually imposed for his firearm use at the time of sentencing in

adult court. The mere placement of his case in adult court did not itself constitute a

punishment; indeed, defendant could have been acquitted by an adult court jury and

received no punishment at all.

       Because the placement of a minor's case in adult court constitutes a jurisdictional

election that does not determine or impose punishment, section 654 is not operative. For

the same reason, we reject defendant's contention that he was punished for his firearm use

in a fundamentally unfair manner that violated due process.

                                      DISPOSITION

       The judgment is affirmed.



                                                                               HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



HUFFMAN, J.

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