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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Arthur WOODS, Defendant and Appellant.

No. B165281.

Decided: June 28, 2004

Chris R. Redburn, San Francisco, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Thien Huong Tran, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant and defendant Arthur Woods of second degree murder (Pen.Code,1 § 187, subd. (a)), and found true the special allegation that he discharged a firearm (§ 12022.53, subds.(b)-(d)).  Defendant was sentenced 40 years to life, with 15 years to life for murder and 25 years to life for the gun use enhancement. (§ 12022.53, subd. (d).)  The remaining gun use enhancements were stayed. (§ 654.)

On appeal, defendant seeks reversal and contends the trial court erred by:  1) declining to augment a jury instruction on the burden of proof for heat of passion (CALJIC No. 8.42);  2) instructing the jury that a plea of self-defense may not be contrived (CALJIC No. 5.55);  3) admitting the tape of a 911 call;  4) admitting a post-autopsy photograph of the victim;  5) cumulatively prejudicing defendant by its instructional and evidentiary errors;  6) imposing a section 12022.53, subdivision (d), gun use enhancement;  and 7) staying, rather than striking, enhancements under section 12022.53, subdivisions (b) and (c).

In the published portion of this opinion, we find merit in defendant's last contention and modify the judgment to strike the enhancements previously imposed and stayed pursuant to section 12022.53, subdivisions (b) and (c).  In the unpublished portion of this opinion, we reject defendant's other contentions and affirm the judgment as modified.


Defendant and victim Debra Woods (Woods) had a stormy marriage.   They argued day after day about defendant's drinking problem.   In one of their fights over his drinking, defendant pushed Woods off the front porch and jumped on her.   Another time, Woods kicked defendant out of the house for three days due to his drinking.   The two lived with their then-one-year-old son, six-year-old daughter, and Woods's 14-year-old son, Clifton.

One early morning in January 2002, the couple's discord erupted after defendant had stayed out all night and returned home smelling of alcohol.   Clifton was awakened by sounds of the couple arguing and Woods shouting at defendant to leave.   In the kitchen, Clifton saw defendant hit Woods in the face with a closed fist.   In response, Woods picked up a kitchen knife, waived it at the front door, and yelled at defendant to get out of the house.   Woods then went to her bedroom and put the knife down by her bed.

That same morning, while defendant watched TV on the living room couch, Woods took the remote control and again asked defendant to leave, so that she could clean up the house, feed the children, and not smell the alcohol.   Woods asked Clifton to hand defendant his coat and persuade him to go, but it was to no avail.   Woods also pretended to telephone the police to trick defendant into leaving, but that too proved unsuccessful.   Defendant only moved from the couch to the floor where he eventually fell asleep.   Woods gave up and retreated to her bedroom.   Clifton subsequently heard defendant go to the back door and saw him take something from a closet shelf in the storage room.

Later that day, the argument resumed outside Clifton's room.   Clifton heard defendant state in a “raised” voice, “I got something for you” and “bitch.”   Clifton saw defendant go to the storage room and Woods run to her bedroom.   Defendant returned pointing a gun at Woods.   Woods ran back holding the knife pointed away from defendant.   Defendant said to Clifton, “Take care of the kids.”   Defendant then grabbed and yanked Woods's hand, saying “come on, let's go outside.”   Woods refused and pulled back.   Defendant then shot Woods once in the chest and she fell backwards.   A deputy coroner later concluded Woods died from rapid blood loss due to a gunshot wound to the chest.   The bullet pierced both lungs and the aorta.   Stippling around the entry wound showed the gun was fired half an inch to 24 inches away from the body.

Immediately after the shooting, Clifton ran to two neighbors for help.   He cried hysterically, “He shot my mama.   He shot my mama.   Help, help, help.”   One neighbor, Kay Marshall (Marshall), called 911 while Clifton relayed the requested information.   Clifton could be heard crying in the background on the 911 call.   The other neighbor, Keisha Green (Green), saw defendant close the trunk of his car, walk “nonchalantly” to the driver's side, and drive away.

That afternoon, the police took defendant into custody.   Even though he smelled of alcohol, defendant exhibited no slurred speech or trouble walking.   After being advised of and waiving his Miranda rights, defendant told police he had made faces at Woods in the kitchen.   Defendant claimed Woods then slapped him in the face before he slapped her back.   Defendant maintained his gun then accidentally discharged inside the bag he picked up, whereupon Woods was struck.   He also said he had thrown away the gun.   When told Woods had died, defendant stated, “Man, I didn't need no lawyer cause, hell, I done-you already know.”   At the end of the interview, defendant declared, “My life is over.”

Defendant's car was found and impounded.   The car's trunk contained a loaded .22 caliber pistol wrapped in a black plastic bag hidden inside a milk crate.   Only one casing had been expended inside the gun's cylinder.   A firearms criminalist found no malfunction that would have caused the gun to discharge accidentally without applying at least four pounds of pressure on the trigger.

At trial, defendant was acquitted of first degree murder.   The jury convicted him of second degree murder (§ 187, subd. (a)) and found true the special allegations of discharging a firearm (§ 12022.53, subds.(b)-(d)).  The court imposed a sentence of 40 years to life, 15 years to life for murder and 25 years to life for the gun use enhancement. (§ 12022.53, subd. (d).)  It stayed the remaining gun use enhancements. (§ 654.)   A $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine were imposed, with the latter stayed.   Defendant was awarded 463 days of presentence custody credits.   This appeal followed.


 We view the evidence in a light most favorable to the judgment.   (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;  People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.)



A. Section 12022.53, Subdivision (d), Enhancement ***B. Section 12022.53, Subdivisions (b) and (c), Enhancements

 At sentencing, the trial court imposed a 25-year-to-life term for the firearm enhancement under section 12022.53, subdivision (d).  On the same count, the court also imposed a 10-year term under subdivision (b) and a 20-year term under subdivision (c) of section 12022.53.   The trial court ordered the additional enhancements stayed pursuant to section 654.3  On appeal, defendant asserts the terms imposed under subdivisions (b) and (c) of section 12022.53 must be stricken.

At issue are two conflicting subdivisions regarding imposition of enhancements under Section 12022.53.   On the one hand, subdivision (f) of that section provides:  “Only one additional term of imprisonment under this section shall be imposed per person for each crime.   If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.   An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.   An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” (§ 12022.53, subd. (f), emphasis added.)   On the other hand, subdivision (h) of section 12022.53 provides:  “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (§ 12022.53, subd. (h), emphasis added.)

 1. People v. Bracamonte and People v. Oates

In People v. Bracamonte (2003) 106 Cal.App.4th 704, 131 Cal.Rptr.2d 334 (review den. May 14, 2003) (Bracamonte ), Division Four of this District attempted to harmonize the conflicting language in subdivisions (f) and (h) of section 12022.53.   There, a defendant convicted of murder was found to have personally and intentionally discharged a firearm which inflicted great bodily injury or death (former §§ 12022.5, subd. (a)(1);  12022.53, subds. (b)-(d)).  (Bracamonte, supra, 106 Cal.App.4th at p. 706, 131 Cal.Rptr.2d 334.)   The defendant was sentenced on one count to life without the possibility for parole, plus 25 years to life on the firearm discharge and use enhancement.   (Ibid.) The trial court also imposed and stayed certain firearm discharge and use enhancements.  (Ibid.)

With regard to section 12022.5, the Bracamonte court followed the “plain and clear language that a section 12022.5 firearm use enhancement ‘shall not be imposed ․ in addition to an enhancement imposed pursuant to ․ section [12022.53].’ (§ 12022.53, subd. (f).)”  (Id. at p. 712, fn. 5, 131 Cal.Rptr.2d 334.) “Such directive is mandatory.   No discretion is involved.   [Citations.]”  (Ibid.) In accord with the language of section 12022.53, subdivision (f), and earlier authority, the court concluded that the “better rule” is that these enhancements must be stricken.  (Id. at p. 711, 131 Cal.Rptr.2d 334, citing People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1114-1115, 1121-1124, 231 Cal.Rptr. 387;  in accord People v. Jones (1993) 5 Cal.4th 1142, 1149-1153, 22 Cal.Rptr.2d 753, 857 P.2d 1163 [where the section 667, subdivision (a), and section 667.5, subdivision (b), enhancements arise from the same conviction, only the greater applies, and the proper remedy is to strike the section 667.5 enhancement];  People v. Haykel (2002) 96 Cal.App.4th 146, 151, 116 Cal.Rptr.2d 667 [enhancement imposed or stricken, not stayed];  People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502 [enhancements stricken];  contra, People v. Vergara (1991) 230 Cal.App.3d 1564, 1568-1569, 282 Cal.Rptr. 90 [permanent staying of enhancement equivalent to striking enhancement].)

On section 12022.53 enhancements, however, Bracamonte reached a different conclusion.   Given the conflict between the provisions of subdivisions (f) and (h), the Bracamonte court concluded “section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term.”  (Bracamonte, supra, 106 Cal.App.4th at p. 713, 131 Cal.Rptr.2d 334.)

In People v. Oates (2004) 32 Cal.4th 1048, 1055, 12 Cal.Rptr.3d 325, 88 P.3d 56 (Oates ), the Supreme Court addressed the situation in which a single victim was physically harmed in a crime of violence against multiple victims, and held that section 12022.53 enhancement is allowed for each separate offense for which the enhancement was found true.  Oates acknowledged the complexity of applying enhancements from the charging stage to verdict.  (Id. at pp. 1058-1059, 12 Cal.Rptr.3d 325, 88 P.3d 56.)   Although Oates did not explicitly discuss whether duplicative section 12022.53 enhancements on the same count should be stricken or stayed, the Supreme Court left undisturbed the Court of Appeal's interpretation that such enhancements should be stricken.  (Id. at p. 1069, 12 Cal.Rptr.3d 325, 88 P.3d 56.)

 2. Legislative Construction

 The ambiguous statutory language in subdivisions (f) and (h) of section 12022.53 and the concerns expressed by Oates compel us to reexamine the holding under Bracamonte.   In construing an ambiguous statute, “courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.  [Citation.]  ‘We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’  [Citation.]”  (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   A statement of legislative findings and declarations generally has relevance to legislative intent.   (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 15, 270 Cal.Rptr. 796, 793 P.2d 2.)  “ ‘[L]egislative intent is not gleaned solely from the preamble of a statute;  it is gleaned from the statute as a whole, which includes the particular directives.’  [Citation.]”  (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118, 81 Cal.Rptr.2d 471, 969 P.2d 564.)   In addition, “[w]e may properly look to the legislative history of an enactment, including legislative committee reports and other legislative records, as an aid to ascertaining the Legislature's intent.   [Citations.]”  (In re Rottanak K. (1995) 37 Cal.App.4th 260, 267, fn. 8, 43 Cal.Rptr.2d 543.)

We examine the relevant legislative history of section 12022.53 from 1997 to 2003.4  Originally enacted in 1997 (Stats.1997, ch. 503, § 1), a primary purpose of section 12022.53 was to “provide[ ] that the court must impose the greatest applicable enhancements, and [to] further provide[ ] that specified enhancements, for using or being armed with a gun, shall not be imposed in addition to the expanded enhancements.”  (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 4 (1997-1998 Reg. Sess.) as amended Apr. 9, 1997, p. 1, par. 4, emphasis added.)

Legislation in 1998 amended several related sections of the Penal Code, including section 12022.53.  (Stats.1998, ch. 925, § 5.5.) The 1998 statute explained that “[i ]n enacting subdivision (f), the Legislature intended to preclude multiple enhancements for the infliction of great bodily injury on one victim for one crime when an enhancement was imposed under subdivision (d) of Section 12022.53. The Legislature did not intend to preclude the imposition of an enhancement for the infliction of great bodily injury under Section 12022.7, 12022.8, or 12022.9 in addition to the imposition of an enhancement for the use or discharge of a firearm under subdivision (b) or (c) of section 12022.53 when the great bodily injury was not caused by discharging the firearm.”  (Stats.1998, ch. 925, § 10.2, emphasis added.)   Nothing in the 1998 statute interpreted subdivision (h) of section 12022.53 to mean that a court may not strike the allegations under that section that are rendered superfluous by the required imposition of the enhancement that provides the longest term.

Moreover, the Assembly Committee on Public Safety stated in the disjunctive that the 1998 legislation amending section 12022.53 “[p]rovides a sentence enhancement of 10, 20, or life imprisonment where a person personally uses a firearm to commit various felonies․” (Assem.   Com. on Pub. Safety, Analysis of Assem.   Bill No. 1290 (1997-1998 Reg. Sess.) as amended Jan. 13, 1998, p. 3, par. 1, emphasis added.)   The plain use of the disjunctive by the Assembly Committee on Public Safety confirms the Legislature intended courts to apply only one enhancement:  “10 years” (§ 12022.53, subd. (b));  “20 years” (§ 12022.53, subd. (c));  or “25 years to life” (§ 12022.53, subd. (d)).

In 2002, among other purposes, the Legislature enacted new legislation to:  “make the language of enhancement statutes uniform and consistent.  ․” (Sen. Com. on Pub. Safety, Analysis of Assem.   Bill No. 2173 (2001-2002 Reg. Sess.) as amended Jun. 4, 2002, 1998, p. B, par. 2, emphasis added.)   The 2002 amendments “eliminate[d] certain enhancements where other provisions of law provide for duplicate or more severe enhancements” under sections 1170.1, 12022.5, 12022.53, 12022.55, 12022.7 and 12022.9.  (Legis.  Counsel's Dig., Stats.2002, ch. 126, p. 1.) The 2002 legislation simplified the language in section 12022.53, but left unchanged subdivisions (f) and (h).  The 2002 legislation also added to section 12022.5, a companion statute on terms of imprisonment for use of firearms, nearly identical language contained in section 12022.53, subdivision (h).  The new provision provided:  “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”  (Stats.2002, ch. 126, § 3;  former § 12022.5, subd. (c).) 5

 Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law.  (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000, 90 Cal.Rptr.2d 236, 987 P.2d 705.)   We are not compelled to give statutory language a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended.  (People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)   It would defy common sense for the Legislature to intend different treatment of two nearly identical statutory provisions.

In construing the Penal Code, “[a]ll its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (§ 4.) Our review of legislative history shows the Legislature instructed trial courts on the manner of applying enhancements under section 12022.53.   Further, in an effort to “make the language of enhancement statutes uniform and consistent,” the Legislature patterned subdivision (c) of section 12022.5 after subdivision (h) of section 12022.53.   The Legislature is presumed to have meant what it said, and the plain meaning of the language governs.  (People v. Coronado, supra, 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   It follows, then, that the Legislature intended the nearly identical language in sections 12022.53 and 12022.5 to have the same meaning.

A fair reading of section 12022.53, subdivisions (f) and (h), leads to a result consistent with that legislative intent.   Applying subdivision (f), the court must choose the section 12022.53 enhancement to be imposed, that providing the longest term of enhancement.   Once that determination has been made, that enhancement, but only that enhancement, must be imposed.   Thereafter the trial court may not strike that single applicable enhancement, as to do otherwise would violate subdivision (h).  None of the other enhancements may be imposed at all;  nor may the other listed enhancements under separate statutory provisions.   Only if they are improperly imposed by the trial court need they be stricken by a reviewing court.6  This construction is further in harmony with legislative intent to eliminate certain enhancements where other provisions of law provide for duplicate or more severe enhancements.

Consistent with our conclusion, then, we find the trial court imposed inapplicable enhancements under section 12022.53, subdivisions (b) and (c) and improperly stayed these enhancements under section 654.   Accordingly, we order the inapplicable enhancements stricken.


We reverse that part of the judgment imposing and staying the terms for the surplus or inapplicable enhancements described in section 12022.53, subdivision (f);  here, sections 12022.53, subdivisions (b) and (c).  In lieu thereof, the imposition of the enhancements for the use and discharge of a firearm enhancements imposed pursuant to section 12022.53, subdivisions (b) and (c) are stricken.   As modified, the judgment is affirmed.


FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

3.   Section 654, subdivision (a), provides:  “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.   An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

4.   Because the offense occurred in January 2002, the applicable period is 2002 and any legislation enacted then or subsequently would not ordinarily apply.   Therefore, our review of 2002 and 2003 legislative history is limited only to construing consistent language under a companion statute, section 12022.5.

5.   Amendments in 2000 and 2001 to section 12022.53 made only technical revisions and nonsubstantive changes.  (Stats.2000, ch. 287, § 30;  Stats.2001, ch. 854, § 60.)   The 2003 amendment to section 12022.5, subdivision (c), was nonsubstantive, substituting “provision of law” with “provisions of law.”  (Stats.2003, ch. 468, § 21.)

6.   Under this legislative requirement, the finding of an enhancement is not stricken.   The court may not disregard that finding, but instead should place a statement of reasons on the record, indicating its compliance with the legislative direction to impose only one enhancement.   (People v. Ledesma, supra, 16 Cal.4th at pp. 99-100, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)   While there is little practical distinction between this procedure and imposing, and then striking, a superfluous or inapplicable enhancement, because the Legislature directed that these enhancements not be imposed at all, we believe this procedure is more consistent with that intent.


We concur:  PERLUSS, P.J., and JOHNSON, J.

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