PEOPLE v. VO

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Ro Van VO et al., Defendants and Appellants.

No. C034960.

Decided: August 14, 2003

Janice M. Lagerlof, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant Ro Van Vo. The Law Office of Lauretta Marie Oravitz-Komlos and Lauretta Marie Oravitz-Komlos, for Defendant and Appellant Quyen Tran. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, Janet E. Neeley, Deputy Attorney General, for Plaintiff and Respondent.

Defendants Ro Van Vo and Quyen Tran were found guilty by a jury of first degree murder and assault with a firearm in a gang-related, drive-by shooting.   On appeal, defendants claim evidentiary error, ineffective assistance of counsel, insufficiency of the evidence, instructional error, prosecutorial misconduct, and sentencing error.

We conclude the trial court erred in instructing the jury on the “predicate offense” element of a criminal street gang enhancement (Pen.Code,1 § 186.22, subd. (b)(1)), but the error was harmless. In addition, we conclude the trial court erred in sentencing defendants on their convictions for assault with a firearm and erred in imposing consecutive determinate terms of imprisonment for the gang enhancements on the murder convictions.   We will modify defendants' sentences to correct the sentencing errors and, as modified, will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in the light most favorable to the judgments, the evidence showed that on the evening of April 10, 1998, defendants and two or three companions were shooting pool at Hot Shots Billiards on Arden Way in Sacramento.   Defendants were both members of Insane Viet Boys (IVB), an Asian street gang.   As they were preparing to leave, defendants were involved in a confrontation with members of a rival gang, El Camino Crips (ECC), at the poolhall counter.   When someone in defendants' group identified themselves as IVB, someone in the other group said “fuck IVB,” which would have been perceived by a gang member as disrespectful and a challenge.   An off-duty reserve sheriff's deputy, Don Ralls, who was working security at the poolhall, intervened and escorted defendants' group to their car, which belonged to Tran. As they left the poolhall, a group outside that included ECC members taunted defendants' group.   Tran and his group then drove away.

Moments later, Tran returned, pulling into the parking lot.   As Tran drove slowly past the poolhall with the headlights of his car off, Vo fired several shots at the people standing outside.   Southalay Vongesedon, an ECC gang member known as “Nippy,” who was standing by one of the doors to the poolhall, was killed when he was struck in the back of the head by a bullet fragment.   Deputy Ralls, who was still outside when the shooting occurred, ran after the car as it left and fired one shot but missed.

Defendants and a third suspect, Tuan Huynh, also an IVB member, were eventually arrested and charged with the first degree murder of Nippy (§ 187, subd. (a)) and assault with a firearm on Deputy Ralls (§ 245, subd. (d)(1)).   For penalty enhancements on the murder, the amended information alleged:  (1) defendants were armed with a firearm within the meaning of section 12022, subdivision (a)(1);  (2) defendants intentionally and personally discharged a firearm causing great bodily injury to the victim within the meaning of section 12022.53, subdivisions (b) through (l );  and (3) defendants acted “for the benefit of, at the direction of, and in association with a criminal street gang, to wit, INSANE VIET BOYS, with the specific intent to promote, further and assist in criminal conduct by gang members.”   The amended information also alleged the “drive-by murder” special circumstance was intentional and “perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person ․ outside the vehicle with the intent to inflict death.” (§ 190.2, subd. (a)(21).)  As penalty enhancements on the assault, the amended information alleged the same arming enhancement and gang enhancement as alleged for the murder.   The amended information also alleged the personal use of a firearm by Vo and Huynh (but not by Tran) within the meaning of section 12022.5, subdivision (a).

The jury found Vo and Tran guilty of both crimes and found all applicable enhancement allegations true as to both defendants.2  The jury could not reach a verdict as to Huynh, and the court declared a mistrial.

The trial court sentenced Vo to a term of life in prison without the possibility of parole for the murder, with a consecutive term of 25 years to life for the section 12022.53 firearm use enhancement and a further consecutive term of 18 years.   The latter term was composed of a three-year term for the gang enhancement on the murder, an upper term of eight years for the assault, a four-year term for the section 12022.5 firearm use enhancement on the assault, and a three-year term for the gang enhancement on the assault.   The court also imposed but stayed two one-year terms for the section 12022 arming enhancements on the murder and the assault.

The trial court sentenced Tran to a term of life in prison without the possibility of parole for the murder, with a consecutive term of 25 years to life for the section 12022.53 firearm use enhancement and a further consecutive term of nine years four months. The latter term was composed of a middle term of six years for the assault, a two-year term for the gang enhancement on the assault, and a one-year four-month term for an earlier burglary for which Tran was on probation at the time of the shooting.   The court also imposed but stayed two one-year terms for the section 12022 arming enhancements on the murder and the assault and a two-year term for the gang enhancement on the murder.

DISCUSSION

I-VI **

VII

The Section 186.22 Subdivision (b) Gang Enhancements

The jury found that defendants committed the murder of Nippy and the assault on Deputy Ralls “for the benefit of, at the direction of, and in association with a criminal street gang, to wit:  INSANE VIET BOYS, within the meaning of Section 186.22(b)(1) of the Penal Code.” With respect to Vo, the trial court imposed an additional three-year prison term on each count for the gang enhancements.   With respect to Tran, the court imposed an additional two-year prison term on each count, but stayed the additional term on the murder count pursuant to subdivision (e)(2) of section 12022.53.12

Defendants raise several arguments regarding the gang enhancements, which we will address in turn.

A

The evidence was sufficient to support the gang enhancements.

 Defendants argue there was insufficient evidence to support the “predicate offense” element of the gang enhancements.   We disagree.

Subdivision (b) of section 186.22 (hereafter section 186.22(b)) provides enhanced punishment for certain gang-related crimes.  “[T]o subject a defendant to the penal consequences of [section 186.22(b) ], the prosecution must prove that the crime for which the defendant was convicted had been ‘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) and former subd. (c).)  In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol;  (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute;  and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses') during the statutorily defined period. (§ 186.22, subds.(e) and (f).)” 13  (People v. Gardeley, supra, 14 Cal.4th at pp. 616-617, 59 Cal.Rptr.2d 356, 927 P.2d 713.)

 We are concerned with the predicate offenses required to show a “pattern of criminal gang activity.”   To establish the required pattern, the prosecution must prove that the predicate offenses “were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)  “This language allows the prosecution the choice of proving the requisite ‘pattern of criminal gang activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate occasions' or by evidence of such offenses committed ‘by two or more persons' on the same occasion.”  (People v. Loeun (1997) 17 Cal.4th 1, 10, 69 Cal.Rptr.2d 776, 947 P.2d 1313.)  “[W]hen the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed on a single occasion by ‘two or more persons,’ it can ․ rely on evidence of the defendant's commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.”  (Ibid.) However, proof that one gang member committed a single crime and was aided and abetted in the commission of that crime by another gang member establishes only one predicate offense.  (People v. Zermeno (1999) 21 Cal.4th 927, 931-933, 89 Cal.Rptr.2d 863, 986 P.2d 196.)

Here, the prosecution relied on the charged offenses of murder and assault to serve as the predicate offenses for the gang enhancements.14  Defendants contend the charged offenses were insufficient to establish the requisite predicate offenses under the Supreme Court's decision in People v. Zermeno, supra, 21 Cal.4th at page 927, 89 Cal.Rptr.2d 863, 986 P.2d 196.   They are mistaken.

In Zermeno, a section 186.22(b) gang enhancement was imposed on a defendant who was convicted of assault with a deadly weapon.  (People v. Zermeno, supra, 21 Cal.4th at p. 930, 89 Cal.Rptr.2d 863, 986 P.2d 196.)   The finding of the requisite predicate offenses was based on the assault itself and on the aiding and abetting of the assault by the defendant's fellow gang member.  (Ibid.) The Supreme Court found the evidence insufficient to support the gang enhancement because “[w]hen a defendant commits an aggravated assault and a fellow gang member aids and abets that assault by preventing anyone from stepping in ․ their conduct [does not] amount to ‘two or more offenses' committed ‘on separate occasions, or by two or more persons' so as to establish a ‘pattern of criminal gang activity’ under ․ section 186.22.”  (Id. at p. 928, 89 Cal.Rptr.2d 863, 986 P.2d 196, fn. omitted.)   Instead, the high court concluded that “under applicable law, the combined activity of defendant and his companion, who facilitated defendant's commission of the assault, was a single offense.”  (Id. at pp. 928-929, 89 Cal.Rptr.2d 863, 986 P.2d 196.)

 Relying on Zermeno, defendants assert that “for the people to establish that the charged act herein constituted the requisite ‘pattern,’ the people necessarily had to prove that there were two perpetrators [of the charged offenses] other than ․ Tran,” who was only an aider and abettor.   Not so.   Under Zermeno, proof that a perpetrator and an aider and abettor acted together to commit a single crime establishes only one predicate offense for purposes of a section 186.22(b) gang enhancement.  (People v. Zermeno, supra, 21 Cal.4th at p. 933, 89 Cal.Rptr.2d 863, 986 P.2d 196;  see also People v. Duran (2002) 97 Cal.App.4th 1448, 1458, fn. 4, 119 Cal.Rptr.2d 272.) Here, however, there was substantial evidence a perpetrator (Vo, the shooter) and an aider and abettor (Tran, the driver) acted together to commit two crimes-the murder of Nippy and the assault on Deputy Ralls.   Thus, there was substantial evidence of two predicate offenses committed by two persons on a single occasion.   There is nothing in section 186.22(b) or Zermeno that requires two predicate offenses committed on a single occasion to have two different perpetrators.   All that is required is two or more predicate offenses committed by two or more persons on a single occasion-whether those persons act as perpetrators or as aiders and abettors.

For the foregoing reasons, we conclude the evidence was sufficient to support the gang enhancements.

B

The trial court erred in instructing the jury on the “predicate offense” element of the gang enhancements.

 Defendants next contend the trial court erred when it misinstructed the jury on the “predicate offense” element of the gang enhancement.   On this point, we agree.

The court instructed the jury that a pattern of criminal gang activity “can be established by two or more incidents, each with a single perpetrator or by a single incident with multiple participants committing one or more of the specified offenses listed above.  [¶] The current offenses charging the defendants with assault with a firearm and homicide can be used to establish a pattern of criminal gang activity.”

Under Zermeno, the foregoing instruction was erroneous because it informed the jury that a pattern of criminal gang activity could be established by “a single incident with multiple participants committing one or more of the specified offenses․” (Italics added.)   As written, the instruction allowed the jury to find a “pattern of criminal gang activity” based on the commission of only one offense by multiple participants. Under Zermeno, however, proof of a single crime establishes only one predicate offense, no matter how many aiders and abettors may assist the perpetrator in committing the crime.

C

The error in the gang-enhancement instruction was harmless under both the state and federal standards of harmless error.

 Having concluded the gang-enhancement instruction was erroneous, we must determine whether the error was prejudicial.   First, however, we must determine which standard of harmless error applies.

Under the Supreme Court's decision in People v. Sengpadychith (2001) 26 Cal.4th 316, 109 Cal.Rptr.2d 851, 27 P.3d 739, the standard of harmless error that applies to an error in instructing the jury on a section 186.22(b) gang enhancement depends on whether the offense to which the enhancement applies is punishable by a determinate term of imprisonment or by an indeterminate term of imprisonment for life.   If the underlying offense is punishable by a determinate term of imprisonment, then an erroneous instruction on an element of the gang enhancement “is federal constitutional error” which “must be evaluated under the high court's test in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065] (Chapman )․” (People v. Sengpadychith, supra, 26 Cal.4th at p. 320, 109 Cal.Rptr.2d 851, 27 P.3d 739.)   On the other hand, if the underlying offense is punishable by an indeterminate term of imprisonment for life, then the erroneous instruction “does not violate the federal Constitution” and is instead “a matter of state law error, subject to the test ․ articulated in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson )․” (People v. Sengpadychith, supra, 26 Cal.4th at p. 320, 109 Cal.Rptr.2d 851, 27 P.3d 739.)

Here, section 186.22(b) gang enhancements were separately imposed on each conviction for each defendant-that is-on the murder conviction and the assault with a firearm conviction.   Because murder is a felony that is punishable by an indeterminate term of imprisonment for life, the Watson standard of harmless error applies to the gang enhancement imposed on the murder convictions.   However, because assault with a firearm is a felony punishable by a determinate term of imprisonment, the Chapman standard of harmless error applies to the gang enhancement imposed on the assault convictions.

Under the Chapman standard of harmless error, we must determine “whether the prosecution has ‘prove[d] beyond a reasonable doubt that the error ․ did not contribute to’ the jury's verdict.”  (People v. Sengpadychith, supra, 26 Cal.4th at p. 320, 109 Cal.Rptr.2d 851, 27 P.3d 739.)   Under this standard, we find the instructional error harmless.   The jury convicted both Vo and Tran of having committed both the murder of Nippy and the assault with a firearm on Deputy Ralls.   Thus, the jury's verdicts on the charged offenses confirm that the jury found the two predicate offenses committed by two persons on a single occasion needed to impose the gang enhancements in this case, despite the error in the court's instruction that would have allowed the jury to find the enhancement allegation true based on a single predicate offense.   Under these circumstances, we are convinced beyond a reasonable doubt that the error in the court's gang-enhancement instruction did not contribute to the true finding on the enhancement allegation on the assault charges and therefore the error was harmless under federal law.

Under the Watson standard of harmless error, we must determine “whether without the error it is ‘reasonably probable’ the trier of fact would have reached a result more favorable to the defendant.”  (People v. Sengpadychith, supra, 26 Cal.4th at p. 321, 109 Cal.Rptr.2d 851, 27 P.3d 739.)   Because the state standard under Watson is “less demanding” than the federal standard under Chapman (People v. Cahill (1993) 5 Cal.4th 478, 510, 20 Cal.Rptr.2d 582, 853 P.2d 1037), it follows a fortiori from our conclusion of harmless error under federal law that the error in the court's gang-enhancement instruction was harmless under state law also.

D

The trial court erred in imposing consecutive determinate terms of imprisonment as gang enhancements on the murder convictions.

 As previously noted, with respect to Vo, the trial court imposed a consecutive three-year prison term for the gang enhancement on the murder conviction.   With respect to Tran, the court imposed a two-year prison term for the gang enhancement on the murder conviction, but stayed that term, purportedly pursuant to subdivision (e)(2) of section 12022.53.15

Vo contends the trial court erred in imposing the consecutive three-year sentence for the gang enhancement on the murder conviction and instead should have noted a minimum parole eligibility date of 15 years.   We agree.

At the time of the crimes in this case,16 subdivision (b)(1) of section 186.22 provided:  “Except as provided in paragraph (4), any person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court's discretion.”   Former subdivision (b)(4) (now subdivision (b)(5)) provided:  “Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.”

The Supreme Court explained the operation of the enhanced penalties of section 186.22(b) in People v. Sengpadychith, supra.   According to the court, subdivision (b)(1), which applies to “felonies punishable by a determinate term of imprisonment,” “adds a separate term of imprisonment ‘in addition and consecutive to’ the punishment otherwise prescribed for the felony.”  (26 Cal.4th at p. 327, 109 Cal.Rptr.2d 851, 27 P.3d 739, italics omitted.)   Former subdivision (b)(4), on the other hand, which applies to felonies “punishable by an indeterminate term of imprisonment for life,” “does not alter the indeterminate term of life imprisonment;  it merely prescribes the minimum period the defendant must serve before becoming eligible for parole.”  (Sengpadychith, at p. 327, 109 Cal.Rptr.2d 851, 27 P.3d 739, italics omitted.)

Vo contends the trial court's addition of a three-year consecutive term to his sentence for murder was erroneous because murder is “a felony punishable by imprisonment in the state prison for life”;  therefore, the applicable “enhancement” was the 15-year minimum parole eligibility date provided for in former subdivision (b)(4) and not the additional determinate term of imprisonment provided for in subdivision (b)(1).17

Vo's position finds support in People v. Ortiz (1997) 57 Cal.App.4th 480, 67 Cal.Rptr.2d 126.   In Ortiz, the appellate court concluded “[t]he statutory language [in subdivision (b)(1) of section 186.22] is clear and unambiguous”-“subdivision (b)(1) specifically excepts prisoners serving a life sentence from the additional [determinate] term.”  (Id. at p. 486, 67 Cal.Rptr.2d 126;  accord, People v. Herrera (1999) 70 Cal.App.4th 1456, 1465, 83 Cal.Rptr.2d 307.)

In support of their contrary position that the trial court properly added a three-year consecutive term to Vo's life sentence for murder, the People rely on the majority opinion in People v. Herrera (2001) 88 Cal.App.4th 1353, 106 Cal.Rptr.2d 793.   In Herrera, the court addressed the application of a section 186.22(b) gang enhancement to a sentence of 25 years to life for murder.   The majority concluded “that the 15-year minimum term specified in former section 186.22, subdivision (4), which ․ was the result of a legislative enactment, cannot reduce the 25-year-to-life term specified in section 190, subdivisions (a) and (e), which was the result of an initiative approved by the voters.”  (Id. at p. 1359, 106 Cal.Rptr.2d 793.)   The majority “construe[d] the language in section 186.22, former subdivision (b)(1) ‘[e]xcept as provided by paragraph (4)’ to mean that if paragraph (4) is inapplicable for any reason, then the one of the three determinate terms applies to the defendant.”  (Id. at p. 1364, 106 Cal.Rptr.2d 793.)

In a concurring and dissenting opinion, Justice Grignon disagreed that the trial court had properly imposed a three-year section 186.22(b) gang enhancement on a 25-year-to-life murder sentence.  (People v. Herrera, supra, 88 Cal.App.4th at p. 1368, 106 Cal.Rptr.2d 793.)   Echoing the Ortiz court, Justice Grignon concluded the “language [of section 186.22(b)(1) ] is crystal clear.   Where a defendant receives a life sentence, the 15-year minimum term applies instead of the one-, two- or three-year enhancement.”  (People v. Herrera, supra, 88 Cal.App.4th at pp. 1368-1369, 106 Cal.Rptr.2d 793.)   Noting the Supreme Court's conclusion that the 15-year minimum term is not a sentence enhancement but an alternate penalty for the underlying murder (People v. Jefferson, supra, 21 Cal.4th at p. 101, 86 Cal.Rptr.2d 893, 980 P.2d 441), Justice Grignon further observed:  “Since the penalty for the underlying felony is greater than the alternate gang minimum term, the gang minimum term has no mandatory effect.   However, it is one of the considerations the Board of Prison Terms may take into account when granting or denying parole to a prisoner who is eligible for parole.”  (People v. Herrera, supra, 88 Cal.App.4th at p. 1370, 106 Cal.Rptr.2d 793.)

 We agree with Ortiz and the dissent in Herrera that when a defendant is convicted of a felony, like murder, punishable by imprisonment for life, an additional determinate term of imprisonment cannot be imposed as a gang enhancement under section 186.22(b)(1).18  By the plain terms of the statute, “subdivision (b)(1) specifically excepts prisoners serving a life sentence from the additional [determinate] term.”  (People v. Ortiz, supra, 57 Cal.App.4th at p. 486, 67 Cal.Rptr.2d 126.)   Instead, the defendant is subject to a minimum term of 15 years under former subdivision (b)(4).   Although that minimum term may have no effect where, as here, the penalty for the underlying crime is greater,19 that fact does not allow us to disregard the unambiguous language of the statute.   Accordingly, we will strike the section 186.22(b)(1) determinate term gang enhancement for both defendants as to the murder convictions only.

E ***

VIII

The Section 12022.53(d) Firearm Enhancement

As applicable here, former subdivision (d) of section 12022.53 (hereafter section 12022.53(d)) provided for an additional and consecutive term of imprisonment in the state prison for 25 years to life for any person convicted of certain felonies-including murder-“who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7.” 20  The jury found that defendants intentionally and personally discharged a handgun causing great bodily injury in the commission of Nippy's murder within the meaning of section 12022.53(d).  Accordingly, the court imposed a consecutive term of 25 years to life in prison on each defendant for the firearm enhancement.

Defendants raise several arguments regarding these enhancements, which we will address in turn.

A

The section 12022.53(d) firearm enhancement can be imposed on a sentence of life without possibility of parole.

 While this appeal was pending, Division Seven of the Second Appellate District decided a case-People v. Navarro-in which the court held that subdivision (j) of section 12022.53 (hereafter section 12022.53(j)) precludes a defendant sentenced to life without possibility of parole under the “drive-by murder” special circumstance statute from being given an additional sentence of 25 years to life under section 12022.53(d).  We requested additional briefing from the parties on this question.   Not surprisingly, defendants urged us to follow Navarro, and the People contended Navarro was wrongly decided.   Subsequently, the Supreme Court ordered Navarro depublished.  (People v. Navarro (Mar. 17, 2003, mod.Apr.14, 2003) B148711, review den. and opn. ordered nonpub.   June 25, 2003, S115867.)  At oral argument, counsel for defendant Vo continued to urge us to follow the reasoning of the Navarro court.   For the reasons that follow, we decline to do so.

Section 12022.53(d) provides that “[n]otwithstanding any other provision of law, ․ an additional and consecutive term of imprisonment in the state prison for 25 years to life” shall be imposed when a defendant intentionally discharges a firearm and proximately causes great bodily injury during the commission of a murder or other designated felonies.   In addition, subdivision (b) of that statute provides an additional 10-year sentence for use of a firearm during a qualifying felony, and subdivision (c) provides an additional 20-year sentence for discharge of a firearm during a qualifying felony.   Under subdivision (f) of the statute, “[o]nly 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.”

Section 12022.53(j) provides:  “For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.   When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment.”

According to defendant, the 25-years-to-life enhancement does not apply in a case like this because “another provision of law,” section 190.2, subdivision (a)(21), “provides for a greater penalty or a longer term of imprisonment,” life without possibility of parole.   Defendant takes the position that the language of subdivision (j), which was inserted as an amendment to the original bill, was added to the statute to make sure the “notwithstanding any other provision of law” language in subdivisions (b) through (d) did not inadvertently supersede a law which would impose an even greater punishment on a defendant who happened to employ a firearm in committing one of the enumerated crimes and to avoid the risk of ridicule and loss of respect for the criminal justice system in imposing an off-the-wall sentence such as death plus life in prison.

According to defendant's interpretation of subdivision (j), a section 12022.53 enhancement does not apply if “another provision of law”-including the provision of law proscribing the basic punishment for the underlying felony-“provides for a greater penalty or a longer term of imprisonment,” in which case only the penalty under the other provision of law is to be applied.   Under that construction of the statute, section 12022.53 can never be applied to any felony that is punished by life in prison without possibility of parole because that punishment will always be greater than any of the section 12022.53 enhancements.

This interpretation of section 12022.53(j) is untenable because it is utterly at odds with subdivision (a) of the statute, which specifies the felonies to which the statute applies.   Included in those designated felonies are two that are punishable only by a term of life in prison without possibility of parole:  (1) aggravated mayhem (§ 205);  and (2) kidnapping for ransom in which the victim “suffers death or bodily harm, or is intentionally confined in a manner which exposes [the victim] to a substantial likelihood of death” (§ 209, subd. (a)). (§ 12022.53, subd. (a)(2)-(3).)  In addition, section 12022.53 specifically applies to the crime of assault with a deadly weapon by a prisoner serving a life sentence (§ 4500), which is punishable by death or life in prison without possibility of parole if the victim dies within a year and a day after the assault. (§ 12022.53, subd. (a)(14).)  Finally, subdivision (a) of section 12022.53 includes a “catch-all” provision that provides for the statute's application to “[a]ny felony punishable by death or imprisonment in the state prison for life.” (§ 12022.53, subd. (a)(17).)

Defendant's interpretation of section 12022.53(j) cannot be reconciled with the foregoing provisions.   Defendant contends that one of the reasons behind subdivision (j) was to avoid the risk of ridicule and loss of respect for the criminal justice system in imposing an off-the-wall sentence such as death plus life in prison.   But subdivision (a)(17) of the statute specifically provides for the application of the statute to “[a]ny felony punishable by death.” Thus, the plain terms of the statute demonstrate that the Legislature specifically intended to provide for imposition of the type of sentence the defendant fears.21

“The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.  [Citation.]   Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute․ An interpretation that renders related provisions nugatory must be avoided [citation];  each sentence must be read not in isolation but in the light of the statutory scheme [citation];  and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

Defendant's literal and isolated language approach to interpreting section 12022.53 failed to heed these fundamental rules of statutory construction.   As the Supreme Court explained in People v. Garcia (2002) 28 Cal.4th 1166, 124 Cal.Rptr.2d 464, 52 P.3d 648:  “The legislative intent behind section 12022.53 is clear:  ‘The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.’  ” (Id. at p. 1172, 124 Cal.Rptr.2d 464, 52 P.3d 648, quoting Stats.1997, ch. 503, § 1.) To effectuate this intent, section 12022.53 provides for prison terms varying from 10 years to 25 years to life, which, “[n]otwithstanding any other provision of law,” are to be imposed as “additional and consecutive” terms-that is, in addition to and consecutive to the punishment that otherwise attaches to the underlying felony. (§ 12022.53, subds.(b)-(d).)  Under defendant's interpretation, however, the mandatory additional and consecutive prison terms provided for by section 12022.53 are not to be imposed in certain instances if the penalty for the underlying felony is greater than the applicable section 12022.53 enhancement.   This construction of the statute not only “renders related provisions [specifically, parts of subdivision (a) of the statute] nugatory,” it also does not “conform [the words of the statute] to the spirit of the act.”

As the People note, defendant's construction of section 12022.53(j) would also lead to absurd results.   For example, if a defendant were convicted of assault with a machine gun on a peace officer under subdivision (d)(3) of section 245 and given the upper term of 12 years in prison, defendant's construction of section 12022.53(j) would preclude the trial court from imposing a 10-year firearm use enhancement under subdivision (b) of section 12022.53 because section 245 provides for a longer sentence than the enhancement.   Thus, the defendant would receive a total term of 12 years.   In contrast, if the same defendant received the middle term of nine years for the assault, then the trial court could impose the 10-year gun use enhancement, and the defendant would receive a total term of 19 years.   Interpretations of statutes that lead to such absurd results are to be avoided.  (People v. Loeun, supra, 17 Cal.4th at p. 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313.)

Even subdivision (j) of the statute reinforces the mandatory nature of the section 12022.53 enhancements by specifying that “[w]hen an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section [that is-shall impose the applicable ‘additional and consecutive term of imprisonment’] rather than imposing punishment authorized under any other provision of law.”  (Italics added.)   The only limitation on this directive is the final part of subdivision (j), which qualifies the directive with the following condition:  “unless another provision of law provides for a greater penalty or a longer term of imprisonment.”

It is not readily apparent from the face of the statute what the effect of this condition was intended to be.   As we have explained, defendant's interpretation of the condition is untenable because it negates other parts of the statute by rendering the section 12022.53 enhancements inapplicable to certain crimes that, by the plain terms of subdivision (a), the Legislature intended to be subject to the statute.   It may be, however, that the condition in subdivision (j) was intended to ensure that section 12022.53 would not be superseded by any later-enacted enhancement provision, unless that enhancement provision provided for “a greater penalty of a longer term of imprisonment.”   Thus, under subdivision (j), the court is required to impose as a sentence enhancement the “additional and consecutive term of imprisonment” provided for in subdivision (b), (c), or (d) of the statute, in lieu of another punishment authorized by law, “unless another provision of law” that provides for a different sentence enhancement “provides for a greater penalty or a longer term of imprisonment.”

This interpretation of the statute is reinforced by the fact that at the same time the conditional language of what became subdivision (j) was added to Assembly Bill No. 4, the bill's author also added language to subdivision (f) specifying that “[a]n enhancement involving a firearm specified in Section 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed in addition to an enhancement imposed pursuant to this section.”  (Assem.   Bill No. 4 (1997-1998 Reg. Sess.) § 2, as amended Feb. 19, 1997.)   The coincidence of these two additions to the bill suggests the author was addressing the interplay of the new “10-20-life” firearm enhancements with other enhancements, both existing and future, that might also apply.   The existing firearm enhancements identified in the addition to subdivision (f) of the proposed statute were all shorter than the new “10-20-life” enhancements, so the legislative purpose of providing longer sentences for gun use could be accomplished by making the new enhancements supersede the existing ones.   This goal was achieved by providing that the new firearm enhancements would apply “[n]otwithstanding any other provision of law” and by providing that the existing enhancements could not be imposed in addition to one of the new enhancements.   To address other enhancements that might be enacted in the future, or amendments to existing enhancements, the bill's author may have added the conditional language in what became subdivision (j) of the statute to ensure that any future enhancements, too, would be superseded by the section 12022.53 enhancements unless the new enhancements were more punitive.

Although this appears to be a plausible construction of the conditional language in section 12022.53(j) which reconciles the language of the statute with its express purpose, we need not decide whether this was, in fact, the intended purpose of that language.   For our purposes, it is sufficient to decide what purpose the Legislature did not intend.   From our review of the statute and its legislative history, we conclude the Legislature did not intend to take the unprecedented step of requiring courts to impose a sentence enhancement instead of the sentence for the underlying crime.   Thus, we conclude a section 12022.53(d) enhancement of 25 years to life in prison can and must be added to a sentence of life without possibility of parole.

B-E †

IX †

DISPOSITION

The judgment is modified by striking the sentences imposed on count two (assault with a firearm) pursuant to subdivision (d)(1) of section 245 and substituting, pursuant to subdivision (a)(2) of section 245, a sentence of four years in prison for defendant Vo and a sentence of three years in prison for defendant Tran. The judgment is also modified by striking the three-year sentence imposed on Vo for the criminal street gang enhancement on count one (murder) under subdivision (b) of section 186.22 and the two-year sentence imposed on Tran for the same enhancement on that count.

As modified, the judgment is affirmed.   The trial court is directed to prepare amended abstracts of judgment for both defendants reflecting the modifications and to forward certified copies of those amended abstracts to the Department of Corrections.

FOOTNOTES

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.

2.   The assault charge had been reduced to assault with a firearm on a person (§ 245, subd. (a)(1)) before the case went to the jury.

FOOTNOTE.   See footnote *, ante.

12.   This point is discussed further below.

13.   To fall within the “statutorily defined period,” at least one of the predicate offenses must have occurred “after the effective date” of the gang-enhancement statute, and the last of the predicate offenses must have occurred “within three years after a prior offense.” (§ 186.22, subd. (e).)  There is no issue in this case whether the predicate offenses fell within the statutorily defined period since, as will be shown, the charged offenses also served as the predicate offenses.

14.   Although there was some testimony regarding prior crimes by IVB members, the People properly acknowledge that testimony could not support imposition of the gang enhancements because there was no evidence placing those crimes within the statutorily defined period.

15.   That statute precludes the court from imposing a section 186.22(b) gang enhancement in addition to an enhancement for using or discharging a firearm under subdivision (e) of section 12022.53, “unless the person personally used or personally discharged a firearm in the commission of the offense.” (§ 12022.53, subd. (e)(2).)  Although we doubt the imposition and stay of a sentence enhancement is consistent with a statute barring imposition of the enhancement in the first place, we need not decide this issue because, as explained below, we are striking the section 186.22(b)(1) gang enhancements altogether for other reasons.

16.   Section 186.22 was rewritten in 2000 by Proposition 21.  (See Historical and Statutory Notes, 47 West's Ann. Pen.Code (2003 supp.) foll. § 186.22, p. 79.)

17.   The Supreme Court has explained that the 15-year minimum term in section 186.22(b)(4) is not actually a sentence enhancement at all but is instead “an alternate penalty for the underlying felony itself.”   (People v. Jefferson (1999) 21 Cal.4th 86, 101, 86 Cal.Rptr.2d 893, 980 P.2d 441, italics omitted.)

18.   In reaching this conclusion, we join two other recent decisions by our colleagues in the Courts of Appeal, Fourth Appellate District, Division One (People v. Harper (2003) 109 Cal.App.4th 520, 523-527, 135 Cal.Rptr.2d 120) and the Second Appellate Division, Division Six (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236-1239, 135 Cal.Rptr.2d 848).

19.   Here, the penalty for the underlying crime is life without the possibility of parole.   Obviously, the 15-year minimum parole eligibility specified in former section 186.22, subdivision (4) has no effect where defendant is not eligible for parole in the first place.

FOOTNOTE.   See footnote *, ante.

20.   As it now reads, section 12022.53(d) applies when the firearm use causes “great bodily injury ․ or death.”  (Stats.1998, ch. 936, § 19, p. 90.)

21.   Indeed, such sentences are possible under other Penal Code provisions also.   In People v. Koontz (2002) 27 Cal.4th 1041, 119 Cal.Rptr.2d 859, 46 P.3d 335, our Supreme Court affirmed a judgment that imposed “death for [a] murder conviction, imprisonment for life for [a] kidnapping for robbery conviction, and an aggregate determinate term of 21 years' imprisonment” where “both the indeterminate and the determinate terms were to be served consecutively to the sentence for murder.”  (Id. at p. 1054, 119 Cal.Rptr.2d 859, 46 P.3d 335.)

FOOTNOTE.   See footnote *, ante.

ROBIE, J.

We concur:  SIMS, Acting P.J., and KOLKEY, J.