The PEOPLE, Plaintiff and Respondent, v. Gerardo Barragan GONZALES, Defendant and Appellant.
Gerardo Gonzales was convicted by jury of assault with a firearm and shooting at a person from a motor vehicle. The jury also found true enhancements alleged as to each count, including enhancements for participating in a criminal street gang and inflicting great bodily injury by shooting from a vehicle (Pen.Code, § 12022.55).1 Defendant argues that the gang enhancement is unsupported by the evidence and the court erred in admitting prejudicial hearsay from the prosecution's gang expert. He further contends that reversal is required because of juror misconduct and that the enhancement imposed under section 12022.55 constitutes unlawful double punishment.
We conclude the People failed to establish by competent evidence the “pattern of criminal gang activity” element of the gang enhancement (§ 186.22) and therefore reverse as to that enhancement. In all other respects, we affirm.
The charges involved a drive-by shooting early on the morning of October 10, 1992. It was undisputed that the shooting had occurred and that the 12–year–old victim was struck by shotgun pellets. Defendant contested his identification as the assailant and the truth of the gang enhancement allegations.
I. Prosecution Case
A. The Shooting
Twelve-year-old Domingo Tamayo was at a friend's home on West Ninth Street in Santa Rosa on the night of October 9, 1992. A truck drove by the house twice, the second time around 9:30 p.m. The two occupants of the truck looked at Tamayo and his friends but said nothing. The truck returned a third time around 1 a.m. with two or three more people inside, including defendant. Defendant held a shotgun, yelled “Puro Sur, P S C,” and fired several times in rapid succession, hitting Tamayo.2 Shotgun pellets also hit a nearby car and garage.
Tamayo testified he was sure defendant was the shooter. Although defendant was wearing a blue kerchief on his forehead, Tamayo could see his face. Tamayo had seen defendant around the neighborhood several times and knew his nickname, Geruch. Immediately after the attack, one of Tamayo's friends told him Geruch was the shooter, but Tamayo already knew that because he had seen defendant's face. A police officer who spoke with Tamayo at the scene testified the boy was confused at the time, but that he kept repeating that “it was Geruch.” No one else identified the assailant to the police.
B. Gang Relationship
Defendant was arrested shortly after 4 a.m. the same morning. He told police he was a member of the “PSC” gang and explained PSC stood for “Puro Surenos Cholos,” meaning “pure southern gangster.” His nickname, Geruch, is tattooed on his back.
Tamayo testified defendant was wearing a dark blue kerchief or bandana tied around his forehead the night of the shooting. His words, “Puro Sur, P S C,” meant to Tamayo that defendant was a member of a “Surenos” or “southerner” gang that claimed blue as its identifying color.
Carlos Matos, another witness to the shooting, testified he heard someone yell, “Puro Sur, you fucking punks,” when the shots were fired. He explained that meant the assailants were “Surenos” (“Southerners”), “a gang that claims blue.” According to Matos, the “Nortenos” (“Northerners”) claimed the color red and used a hand signal for the number 14 as their identifying signs. Matos and the other friends present the night of the shooting belonged to the “N X Four,” a Nortenos gang. Matos was wearing a red sweatshirt and had a pattern of dots that represented the number 14 tattooed on his fingers. Tamayo, who testified he was once a gang member but had dropped out before the shooting, was wearing red shoes. Tamayo's brother was “a red,” a member of a “red” gang.
The prosecution called Detective Kilass, an expert on gangs and the police department's gang information officer. Kilass kept current on gang culture, habits, trends, and customs by interviewing gang members, meeting with other law enforcement officers, and attending training seminars. Kilass testified that about a dozen gangs were active in Sonoma County, some affiliated with the north, some with the south, and others claiming to be neutral. The PSC gang had a specific Santa Rosa turf marked by PSC graffiti. The N X Four or Santa Rosa Nortenos gang also had its turf. The house at which Tamayo was shot was in Norteno turf and was marked by graffiti as Norteno territory.
In an interview with Kilass after the shooting, defendant said he was a member of PSC and had started the gang with his cousin. In addition to the tattoo on his back, defendant had scars on his left shoulder that spelled out “PSC.” He also had tattoos on his fingers that signified the number 13, or affiliation with the south. The tattoos and scars were displayed to the jury. The prosecution introduced a photograph of defendant and a friend making hand signals of the number 13. Kilass testified the hand signal and the number 13 represent the 13th letter of the alphabet, M, for the “Mexican Mafia” southern prison gang, and signify affiliation with Surenos.
Kilass characterized PSC as a violent gang based on his knowledge of prior shootings and assaults by and against PSC members. The animosity between PSC and Nortenos had been very high during the month before the shooting. Over defendant's hearsay objection, Kilass testified that police records showed reports of over two dozen gunshots in the neighborhood where Tamayo was shot between July 1992 and January 1993.
Again over hearsay objections, Kilass described several other incidents that he believed involved PSC members.3 On November 13, 1991, defendant and his cousin Jose Torres, a PSC member, were arrested for stabbing a member of another gang. The motive, Kilass was told by the victim, was that Torres had been told to remove his blue colors while in a red area. Certified copies of Torres's juvenile court records showing a finding of assault with a deadly weapon were admitted into evidence.
On July 15, 1992, defendant and other PSC members were riding in a car that was chased and fired on by a passenger in a car with a red cloth hanging from it. Defendant was injured in this shooting.
On October 9, 1992, a group of PSC members fired on two members of a Nortenos gang at the Santa Rosa Plaza. The next day, three of the PSC members involved stole a truck and drove it to Sacramento to escape retaliation for the shooting. Certified copies of juvenile court records for each of the three young men showing findings of assault with a deadly weapon and gang enhancements were admitted into evidence.
Detective Kilass was asked to assume that a house had gang graffiti on or near it, that individuals in or about the house were wearing colors associated with particular gangs, that a vehicle drove by at least three times, that one passenger in it was wearing a blue bandana, and that on the last pass a passenger in the vehicle yelled out a gang name and fired a weapon. Kilass opined that the shooting in the hypothetical case was committed for the benefit of, or at the direction of, and in association with, a criminal street gang. Further, the intent of the shooting was to promote or assist criminal conduct by criminal street gangs. In the detective's opinion, defendant was an active member of a gang whose primary activity was gratuitous violence consisting of assaults against other gangs and retaliation for assaults against it.
II. Defense Case
Defendant denied shooting Tamayo. He spent that night socializing and playing soccer with some friends at an apartment complex not far from the shooting scene. He never left the area of the complex between 9 a.m. Friday morning and 4 a.m. the following day. Defendant's sister Maria and friend Reyna Morales testified they were with defendant until 2 or 3 a.m.
Defendant denied belonging to a gang. PSC, he explained, was not a gang but just “a whole bunch of people [who] get together and have fun with their girlfriends.” PSC meant “only surenos cholos”; cholos meant men who “dress all nice, look good for girls.” The photograph of defendant and his friend displaying a “13” hand signal merely signified defendant's birthday, May 13. The “13” tattooed on his knuckles likewise referred to his birthday. Defendant acknowledged a photograph of gang graffiti showed his nickname, Geruch, with a 13 after it, but said his name was misspelled and that he did not put the graffiti there. He explained the “PSC” scarred into his shoulder was done “a long time ago” in 1991. It actually stood for his girlfriend Patty's initials; he could not, however, recall Patty's last name.
Dr. John Watts Podboy, a clinical and forensic psychologist, testified as an expert on eyewitness identification. He listed various factors that could affect perception, retention, and recall, including stress, age, fatigue, injuries, postevent suggestion, and expectations. He opined stress might affect a 12 year old more strongly than an adult. On cross-examination, he stated he knew nothing about the case or the particular victim's memory or ability to recall. Nor could he recall having read studies regarding eyewitness identification of a subject known to the witness.
III. Prosecution Rebuttal
In rebuttal, Detective Kilass testified about defendant's pretrial statements. In a taped interview, defendant admitted he had been with PSC for several months and that PSC stood for “Puro Surenos Cholos,” meaning “Only South Cholos.” Defendant explained to Kilass that “North people have their own kind of gang, so we did our kind of gang.” Defendant also told Kilass his “PSC” scar stood for “Puro Surenos Cholos.” He denied responsibility for the Tamayo shooting and did not indicate PSC was a criminal street gang.
On cross-examination, Kilass testified that two gang members involved in the October 9, 1992, Santa Rosa Plaza shooting told him they had seen defendant later that evening on West Ninth Street; defendant, or someone else, told them to leave town.
Detective Kilass's partner, Detective Nunes, testified he interviewed defendant on May 7, 1992, because defendant had been injured in a shooting. Defendant denied being part of any gang, but admitted he “claimed” Surenos. To Nunes that meant defendant identified with south and the color blue; his adversaries would be those who wore red or claimed north. Defendant wore a blue sweatshirt and blue shorts at the interview.
Detective Hemphill interviewed defendant in connection with his investigation of the July 15, 1992, shooting. Defendant was one of six occupants in a car that crashed into a bus after it was shot at and chased by the occupants of another car. Defendant told Hemphill the shooting had probably been over colors and that one of the people in his car had been wearing a blue bandana. All the people in the other car wore red. Photographs showing a blue sweatshirt and a bloody blue bandana on the ground at the accident scene were admitted into evidence.
The jury found defendant guilty on both counts and found the enhancement allegations true. Defendant was sentenced to the upper term of seven years for the drive-by shooting (§ 12034, subd. (c)), plus consecutive terms of one year for participation in a criminal street gang (§ 186.22, subd. (b)(1)) and five years for discharging a firearm from a vehicle causing great bodily injury (§ 12022.55). The court imposed and stayed a three-year consecutive term for the great bodily injury enhancement (§§ 12022.7, 1170.1, subd. (e)). The court also imposed an aggregate term of seven years for the assault with a deadly weapon and its enhancements, but stayed this sentence pursuant to section 654. The total unstayed sentence was 13 years. The court imposed a $10,000 restitution fine and awarded 304 days of presentence credits. This appeal timely followed.
I. The Gang Enhancement
Defendant contends the only evidence supporting an essential element of the gang enhancement, a “pattern of criminal gang activity,” was inadmissible hearsay. He further argues the introduction of gang-related hearsay through the prosecution's gang expert was so prejudicial as to require reversal of the entire judgment. We agree with the first point but not the second.
A. The Evidence Does Not Support a “Pattern of Criminal Gang Activity”
The criminal street gang enhancement set forth in section 186.22, subdivision (b)(1) requires proof that defendant committed the crime for the benefit of, in association with, or at the direction of a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons, formal or informal; that has a common name or symbol; has as one of its primary activities the commission of certain specified crimes; with members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (f).) A “pattern of criminal gang activity” is, in turn, defined as the commission, attempted commission, or solicitation of two or more specified offenses on separate occasions within a three-year period or by two or more persons. (§ 186.22, subd. (e).) The specified offenses include assault with a deadly weapon, “[u]nlawful homicide or manslaughter,” shooting at an occupied motor vehicle, grand theft of a vehicle, and other crimes. (§ 186.22, subd. (e).)
The narrow issue here is whether the People produced sufficient admissible evidence to establish the existence of a “pattern of criminal gang activity.” Under the authority of People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938 (Wheeler ), the People's evidence is inadmissible to prove that gang members had actually committed two or more of the designated offenses within the statutory time frame. It is, instead, hearsay evidence competent only to establish that the named individuals suffered the findings sustained against them by the juvenile court.4 (Id. at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938.)
In Wheeler, the Supreme Court confronted the issue of whether, following the passage of Proposition 8 and its “Truth-in-Evidence” provisions (Cal. Const., art. I, § 28, subd. (d) (hereafter section 28(d))), a witness could be impeached with a prior misdemeanor conviction. The court held the fact that a witness had engaged in misdemeanor conduct may reasonably bear on that witness's credibility. (Wheeler, supra, 4 Cal.4th at p. 295, 14 Cal.Rptr.2d 418, 841 P.2d 938.) The court went on to consider whether documentary proof of a witness's misdemeanor conviction was proper impeachment. The majority held it was not and reasoned as follows.
In the area of impeachment, the Legislature had established a clear scheme. Historically, specific instances of misconduct were inadmissible to prove a trait of character when offered to attack credibility. (Evid.Code, § 787.) A specific exception was enacted allowing impeachment with felony convictions. (Evid.Code, § 788.) (Wheeler, supra, 4 Cal.4th at p. 290, 14 Cal.Rptr.2d 418, 841 P.2d 938.)
However, Proposition 8 added section 28(d) to the California Constitution, providing that “relevant evidence shall not be excluded in any criminal proceeding” except under particular circumstances. Courts have consistently interpreted section 28(d) as superseding all California limitations on admissibility of relevant evidence, except those specifically preserved by the language of the proposition itself.5 (Wheeler, supra, 4 Cal.4th at p. 291, 14 Cal.Rptr.2d 418, 841 P.2d 938 and cases cited therein.) Thus, the limitation on use of specific acts otherwise relevant to prove a trait of character for impeachment is abrogated in criminal cases. (Id. at pp. 291–292, 14 Cal.Rptr.2d 418, 841 P.2d 938.)
The question, then, becomes how such prior acts may be proven. In Wheeler, a witness admitted on cross-examination that she had suffered a misdemeanor conviction. The Supreme Court ruled the admission of the conviction was error. (4 Cal.4th at p. 300, 14 Cal.Rptr.2d 418, 841 P.2d 938.) In doing so, the court articulated a pivotal distinction between conduct and conviction.6
The Wheeler court held the admission of a judgment proves that the defendant was convicted of the crime. The fact proven is the fact of conviction. The judgment is hearsay on the subject of whether the defendant actually committed the acts which gave rise to the conviction. (Wheeler, supra, 4 Cal.4th at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938.) The Supreme Court could have reasoned that proving the fact of conviction establishes beyond a reasonable doubt that the defendant actually committed the acts necessary to support such a conviction.7 The effect of such reasoning would be that a conviction establishes, as a matter of law, that the defendant engaged in such conduct. The court declined to adopt such an analysis, however. Instead it explained: “Nothing in Proposition 8 changes the long-established understanding that a misdemeanor conviction comes within the statutory rule of inadmissible hearsay (Evid.Code, § 1200) when offered for the truth of the charge. On the contrary, though section 28(d) states a general rule that relevant evidence is admissible in criminal proceedings, the section expressly preserves ‘any existing statutory rule of evidence relating to ․ hearsay․’ There can be no doubt that the hearsay objection to use of misdemeanor convictions remains valid.” (Wheeler, supra, 4 Cal.4th at pp. 298–299, 14 Cal.Rptr.2d 418, 841 P.2d 938, ellipses in Wheeler, fn. omitted.)
The Wheeler court rejected the contention that misdemeanor convictions are admissible over a hearsay objection as business or official records. (Evid.Code, §§ 1271, 1280.) “․ [A]n admissible record is competent only to prove the act it records. Thus, while the documentary evidence of a conviction may be admissible to prove that the conviction occurred, the business or official records exceptions do not make the abstract of judgment admissible to show that the witness committed the underlying criminal conduct.” (4 Cal.4th at p. 300, fn. 13, 14 Cal.Rptr.2d 418, 841 P.2d 938, italics in original.) While Wheeler is a relatively recent opinion, the rule it states is well established. (See, e.g., People v. Ferguson (1982) 129 Cal.App.3d 1014, 1024–1025, 181 Cal.Rptr. 593; Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 887–888, 64 Cal.Rptr. 655; Manes v. Wiggins (1967) 247 Cal.App.2d 756, 56 Cal.Rptr. 120; Cal.Law Revision Com. com., 29B pt. 4 West's Ann.Evid.Code (1995 ed.) § 1300, pp. 396–397; 1 Witkin, Cal.Evidence (3d ed. 1986) §§ 803–805, pp. 772–774.) 8
The People assert (without citation to the legislative history of section 186.22) that the Legislature “obviously” expected judicial records of conviction would suffice, when available, to prove “a pattern of criminal gang activity.” If this is the rule the Legislature intended, it is not the one they enacted. The Legislature chose to require the prosecution to prove the commission, attempted commission, or solicitation by gang members of specified offenses. (§ 186.22, subds. (e), (f).) It could have chosen to predicate the enhancement on prior convictions for such offenses, attempts, or solicitations, the fact of which could be proven by introducing court records. (§ 969b.) It did not do so. Absent any clear indication of a legislative intent to abrogate established rules of evidence, we do not read such an intent into section 186.22.
The People's analogy to cases approving the use of conviction records to prove the residential character of prior burglary convictions is unavailing.9 In People v. Guerrero, supra, the Supreme Court held the trier of fact may look beyond the judgment to the entire record of the conviction to determine the truth of a prior conviction allegation. (44 Cal.3d at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150.) The court, however, expressly declined to resolve “such questions as what items in the record of conviction are admissible and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant.” (Id. at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150; see also People v. Myers (1993) 5 Cal.4th 1193, 1196, fn. 2, 22 Cal.Rptr.2d 911, 858 P.2d 301 [directing Court of Appeal to reach defendant's hearsay arguments on remand].) By contrast, the Wheeler court specifically held that, absent any pertinent hearsay exception, a record of conviction is inadmissible to prove a defendant committed the underlying offense. (4 Cal.4th at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938.) We are bound by that holding.
In the other cases cited by the People, ante at footnote 9, the court records at issue were either (1) documents containing statements by the defendant,10 or (2) transcripts from the defendants' preliminary hearings.11 Here, however, defendant was confronted with court records documenting other people's convictions, from proceedings that did not involve defendant. The People's authorities are thus distinguishable.
Because the records of conviction are inadmissible to prove the underlying offenses, we must conclude the admissible evidence here fails to establish a pattern of criminal gang activity. Accordingly, we reverse the judgment as to the section 186.22, subdivision (b)(1) enhancement. (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 279 Cal.Rptr. 236 [reversing gang enhancement where predicate offense was supported only by hearsay].) We do not reach defendant's contentions that he was denied confrontation and cross-examination as to the gang enhancement and that the jury was inadequately instructed thereon.
B. The Improper Hearsay Does Not Require Reversal of the Entire Judgment **
II. Jury Misconduct **
III. The Section 12022.55 Enhancement
As noted, the court enhanced defendant's conviction for the drive-by shooting (§ 12034, subd. (c)) with a consecutive five-year term under section 12022.55 for inflicting great bodily injury by shooting from a car.12 Defendant complains the sentence violated section 654, which prohibits the imposition of punishment for more than one violation arising out of an act or omission made punishable in different ways by different statutory provisions. “Because shooting from a car is the crux of both offenses,” defendant argues, “the enhancement in effect constitutes an element of the underlying felony, and its imposition was improper.” Assuming arguendo section 654 applies to sentence enhancements, an unsettled question (see, e.g., People v. Flournoy (1994) 26 Cal.App.4th 1695, 1698 & fn. 2, 32 Cal.Rptr.2d 188), defendant is mistaken.
People v. Parrish (1985) 170 Cal.App.3d 336, 217 Cal.Rptr. 700 is analogous. The defendant there was sentenced to four years on a conviction of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)) and received a three-year enhancement for having inflicted great bodily injury during the assault. The Court of Appeal rejected his contention that the sentence constituted prohibited dual punishment, reasoning the enhancement, unlike the underlying offense, required proof of a showing of intent to injure and great bodily injury. The court further noted the enhancement statute did not define a separate offense, but instead reflected a legislative decision to punish more severely those crimes that actually resulted in great bodily injury. (Parrish, supra, at pp. 343–344, 217 Cal.Rptr. 700.) The same reasoning applies here. Because neither great bodily injury nor the intent required by section 12022.55 is an element of drive-by shooting as defined by section 12034, subdivision (c), imposition of the enhancement does not violate section 654.
The judgment is reversed as to the section 186.22, subdivision (b)(1) enhancement. In all other respects, the judgment is affirmed.
1. Unless otherwise indicated, all further statutory references are to the Penal Code.
2. Doctors later removed at least six pellets from Tamayo's arm. One pellet that lodged near a nerve in a finger had the potential to cut the nerve and artery. Defendant does not dispute the finding of great bodily injury.
3. The court allowed the testimony subject to the following limiting instruction: “Ladies and gentlemen, this testimony is not being offered for—independently for the truth of the matter asserted. In other words, we're not—they are not attempting to show here someone in court that these people named are responsible beyond any standard of proof for what happened. They are just as a basis for the ultimate opinion expressed by the officer here in the courtroom.” Defense counsel continued to interject hearsay objections to Kilass's remaining testimony about these incidents and to the prosecution's introduction of related juvenile court records.
4. Defendant has not raised the further issue of whether the prosecution introduced sufficient evidence, other than hearsay, to prove the individuals who were convicted of those offenses were members of PSC. (§ 186.22, subd. (f) [“ ‘criminal street gang’ means any ongoing organization ․ whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”].) (Italics added.) Because of our analysis under Wheeler, we need not reach that issue.
5. In pertinent part, section 28(d) reads: “Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.”
6. We note that Wheeler involved adult criminal convictions, while this case involves juvenile court findings. The difference is immaterial for purposes of our analysis here. A juvenile judgment, although phrased in terms of finding true the allegations against the minor, is a statement of a court offered “to prove the truth of the matter stated,” just as an adult conviction is offered for the same purpose. (Evid.Code, § 1200, subd. (a).)
7. The court did not discuss what result might obtain if the defendant admitted there was a factual basis for his plea of guilty.
8. Evidence Code section 1300 carves out an exception to this rule where evidence of a conviction of a crime punishable as a felony is offered for the truth in a civil action. The section is, by its terms, inapplicable here.
9. See, e.g., People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Goodner (1992) 7 Cal.App.4th 1324, 1328, 9 Cal.Rptr.2d 543 (Goodner II); People v. Abarca (1991) 233 Cal.App.3d 1347, 1349–1351, 285 Cal.Rptr. 213; People v. Goodner (1990) 226 Cal.App.3d 609, 614, 616, 276 Cal.Rptr. 542 (Goodner I ); People v. Castellanos (1990) 219 Cal.App.3d 1163, 1170–1174, 269 Cal.Rptr. 93; People v. Garcia (1989) 216 Cal.App.3d 233, 236–237, 264 Cal.Rptr. 662; People v. Smith (1988) 206 Cal.App.3d 340, 345 & fn. 7, 253 Cal.Rptr. 522; see also People v. Williams (1990) 222 Cal.App.3d 911, 914–918, 272 Cal.Rptr. 212 (where defendant had no opportunity to cross-examine hearsay declarants, triple hearsay included in probation report held “far too unreliable” to be used to prove the enhancement).
10. Goodner II, supra, 7 Cal.App.4th at page 1329, 9 Cal.Rptr.2d 543 (admission in probation report); People v. Abarca, supra, 233 Cal.App.3d at pages 1349–1351, 285 Cal.Rptr. 213 (admission in transcript of change of plea proceeding); People v. Garcia, supra, 216 Cal.App.3d at page 237, 264 Cal.Rptr. 662 (admission in probation report); People v. Smith, supra, 206 Cal.App.3d at page 345 and footnote 7, 253 Cal.Rptr. 522 (admissions in Tahl form and sentencing transcript).
11. Goodner I, supra, 226 Cal.App.3d at page 616, 276 Cal.Rptr. 542; see also People v. Gonzales (1994) 29 Cal.App.4th 1684, 1701–1704, 35 Cal.Rptr.2d 450. Because this case is distinguishable from People v. Castellanos, supra, 219 Cal.App.3d 1163, 269 Cal.Rptr. 93, we need not discuss its analysis. We decline to extend its holding.
FOOTNOTE. See footnote *, ante.
12. At the time of the offense, section 12022.55 provided: “Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted 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 imprisonment in the state prison for five years.” (Stats.1987, ch. 1147, § 2, p. 4059.)
CORRIGAN, Associate Justice.
CHIN, P.J., and MERRILL, J., concur.