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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Michele Leshawn JACKSON, Defendant and Appellant.

No. A063257.

Decided: December 13, 1994

Carlton Edgar Lacy, Under Appointment by the First Dist. Appellate Project, San Francisco, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Kevin Murphy, Deputy Atty. Gen. San Francisco, for plaintiff and respondent.

Michele Leshawn Jackson was convicted by jury of assault with a firearm (Pen.Code, § 245, subd. (a)(2) [all further unspecified statutory references are to this code] ), which also found true an allegation that she personally used a firearm in committing the offense.  (§ 12022.5.)   She was sentenced to seven years in state prison.

Jackson appeals, claiming the court erred in failing to instruct sua sponte on a lesser offense and improperly admitted evidence of her possession of a handgun on another occasion.   She also seeks remand for resentencing so that the trial court can exercise discretion on whether to impose the firearm enhancement.   We affirm.


On April 24, 1993 at about 10:15 p.m., Damon Smith went to a party on Louisiana Street in Vallejo.   After entering the house, he walked outside where he saw a woman he knew as “Alyse” and asked her, “Don't I know you?”   She responded “You don't know me” and then told him that she would “fuck [him] up.”   Smith laughed at this remark.   Alyse went into the house saying to Smith, “I will be back.”   She returned accompanied by appellant, who said “Oh, that's him” and then pushed Smith.   Alyse tried to step between appellant and Smith.   Appellant then struck Smith in the head, he hit her in the face, and the two began to wrestle on the ground.

Smith eventually got up and pinned appellant against a car because he did not want to hit her.   He heard a gunshot and then realized he was shot in the back.   He fell to the ground and appellant kicked him in the face.

One witness testified that during the party she heard a heavy-set, black woman whom she believed to be appellant say she was carrying a gun.   Another witness testified that he heard Smith ask appellant to dance;  when she refused an argument ensued.   Appellant then pulled a handgun from her bra and said “Fool, stand back.”   She put the gun away but after the fight continued, she pulled out the gun a second time and the witness then heard gunshots.

Smith is 5′7″ and weighs 130 pounds.   Appellant is 5′7″ to 5′8″ and weighs 165 pounds.

When appellant was arrested the day following the shooting, she told police she was carrying a gun inside her bra.   The gun, which was retrieved by the officers, was identified as the one used to shoot Smith.


Appellant asserted self-defense.   She testified that on the night of the incident she heard a verbal confrontation outside the house between a young man and a young lady.   She walked outside and asked Smith, the man, to quiet down.   Smith then slapped her, she hit him back on the head, and he punched her in the jaw.   They grabbed each other and began “tussling on the ground.”

At one point in the struggle Smith got up and kicked her in the head.   Appellant, who felt numb from the blow, then reached into her bra, grabbed her handgun, and fired one shot at Smith as he turned to walk away.   She shot him “to get him off [her]” and because no one would break up the fight.   She admitted that Smith never told her that he had a weapon or threatened to kill her.


I & II ***


Sentence Error

 The court denied appellant probation and imposed a prison sentence of three years for assault with a firearm plus four years for the personal use of a firearm (both midterms), for a total term of seven years.   Appellant contends she is entitled to resentencing because under section 12022.5, subdivision (d) (hereafter subdivision (d)), the trial court had statutory discretion not to impose the enhancement, but failed to exercise it.

Section 12022.5, subdivision (a), provides in pertinent part:  “[A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall ․ be punished by an additional term of imprisonment in the state prison for three, four, or five years, unless use of a firearm is an element of the offense of which he or she was convicted․”  (Emphasis added.)   Subdivision (d) provides:  “The additional term provided by this section may be imposed in cases of assault with a firearm ․ or assault with a deadly weapon which is a firearm․”  (Emphasis added.)

Appellant contends that use of the word “may” evinces a legislative intent to confer discretion on the trial court on whether to impose a firearm enhancement upon conviction of assault with a firearm.   This argument is based on an overly restrictive reading of the statute.

Section 1170.1, subdivision (d), provides that “[w]hen the court imposes a prison sentence for a felony pursuant to Section 1170 the court shall also impose the additional terms provided in [16 specified sections of the Penal and Health and Safety Codes] unless the additional punishment therefor is stricken pursuant to [section 1170.1] subdivision (h).”  (Emphasis added.)   Although the firearm use (§ 12022.5) enhancement was formerly listed in subdivision (h) as one of the enumerated enhancements which the court could strike if “circumstances in mitigation” justified it, a 1989 amendment to the statute deleted section 12022.5 from the list.

Our Supreme Court in People v. Thomas (1992) 4 Cal. 4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159 (Thomas ) held that the Legislature's deletion of section 12022.5 from the list of statutory enhancements which the court had the power to strike under section 1170.1, subdivision (h), prevents a sentencing court from striking section 12022.5 enhancements either under subdivision (h) or the more general “furtherance of justice” provision of section 1385.  (Id., at p. 212, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

 Appellant nevertheless focuses on the word “may” in subdivision (d).  She claims that notwithstanding the use of the mandatory “shall” in subdivision (a) of section 12022.5, the permissive “may” in subdivision (d) confers upon the sentencing court discretion not to impose firearm use enhancements for the offenses enumerated there, including assault with a firearm.   She relies upon the well worn axiom that the word “may” is generally interpreted as permissive while the word “shall” is mandatory.  (People v. Reiley (1987) 192 Cal.App.3d 1487, 1489, 238 Cal.Rptr. 297.)   We would be taking a myopic view of the statute if our inquiry stopped at that observation.

 “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the laws.  [Citations.]  In order to determine this intent, we begin by examining the language of the statute.  [Citations.]  But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’  [Citations.]  Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’  [Citation.]  Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’  [Citation.]”  (People v. Pieters (1991) 52 Cal.3d 894, 898–899, 276 Cal.Rptr. 918, 802 P.2d 420.)

In People v. Hill (1989) 207 Cal.App.3d 1574, 255 Cal.Rptr. 772 (Hill ), the court demonstrated why, in light of legislative history, the word “may” in subdivision (d) (then subdivision (c) 3 ) was not meant to confer general discretion on the trial court to strike the enhancement as to the crimes listed in that section.

Prior to 1983, section 245 was divided into two categories, assault with a deadly weapon or by instrument likely to produce great bodily injury, and such assault on a peace officer or fireman.  (Hill, supra, 207 Cal.App.3d 1574, 1578, 255 Cal.Rptr. 772.)   Because firearm use was not a necessary element of either crime, firearm use enhancements could be imposed on section 245 convictions whenever a firearm was personally used to commit the offense.   (Ibid., citing People v. Martinez (1987) 194 Cal.App.3d 15, 20, 239 Cal.Rptr. 272 (Martinez ).)

In 1982 the Legislature divided section 245 crimes into four categories, including assault with a deadly weapon and assault with a firearm.   Memoranda from the Senate Judiciary Committee and the Senate Republican Caucus showed that the legislators were concerned that the creation of a separate crime of assault with a firearm “might interfere with the preexisting practice of allowing firearm use enhancements to be imposed for any section 245 violation in which the defendant personally used a firearm.  ‘The 1982 amendments to section 12022.5 were an attempt by the Legislature to preserve the status quo ante by providing that the use enhancement charge “applies to a deadly weapon which is a firearm.”  (Legis. Counsel's Dig., Assem. Bill No. 3314, Stats. 1982 (Reg.Sess.).’ ”)  (Hill, supra, 207 Cal.App.3d 1574, 1578–1579, 255 Cal.Rptr. 772, quoting Martinez, supra, 194 Cal.App.3d 15, 23, 239 Cal.Rptr. 272.)

Because subdivision (d) was directed at preserving the court's ability to impose firearm enhancements on section 245 convictions, the Hill court concluded that the word “may” in subdivision (d) “is an exception to the prohibitive language of subdivision (a), i.e., ‘unless use of a firearm is an element of the offense․’ ”  (Hill, supra, 207 Cal.App.3d 1574, 1579, 255 Cal.Rptr. 772, emphasis added.)

Although Hill involved a different issue than that presented here, its reasoning with respect to the legislative purpose behind the use of the word “may” is sound.   Section 12022.5, subdivision (a) makes imposition of the firearm enhancement mandatory except where firearm use is an element of the offense.   However, subdivision (d) carves out an exception to the exception by allowing the enhancement on conviction of certain crimes even where firearm use is an element of the offense.   The “may” therefore was intended to confer on the court authorization to impose the enhancement in cases where it would otherwise be prohibited;  it was not intended to create a new class of crimes in which the court would have discretion to impose the enhancement.

Our conclusion is underscored by Thomas 's holding that the Legislature intended to abolish all discretionary strikings of firearm enhancements when it deleted section 12022.5 from the list of enhancements which could be stricken under section 1170.1, subdivision (h).   It is also consistent with a 1993 amendment of subdivision (d) contained in Senate Bill 310 (S.B.310) adding to the list of crimes to which the enhancement “may” be imposed “murder if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.”  (Stats.1993, ch. 609 (S.B. 310), § 4, subd. (d), emphasis added.)

S.B. 310 was a package of amendments carried by Senator Ruben S. Ayala, and sponsored by the governor, stiffening the penalties for drive-by killings.  (§ 189, West's Annot.Pen.Code (1994 cum. pocket part), Historical and Statutory Notes, p. 79.)   The Senate Rules Committee Report for the bill states that the subject amendment “provides for a three, four, or five year enhancement for any person who personally uses a firearm in [a drive-by killing].”  (Com. rep. S.B. 310, 1993–94 Reg.Sess., 9/10/93, emphasis added.)   The report goes on to state that “[t]he purpose of this bill is to increase the penalty for murders committed by drive-by shootings.”  (Ibid.)

In light of the Legislature's unmistakable intent to strengthen the punishment for drive-by murders, it is clear that the addition of this especially heinous crime to the subdivision (d) list presupposes acceptance of the Hill court's interpretation that the word “may” in that subdivision confers authorization rather than discretion.4

We conclude in light of Thomas, Hill and the legislative history of the statute, that imposition of the firearm use enhancement was mandatory, not discretionary.   Furthermore the record shows convincingly, that the sentencing judge carefully weighed the applicable factors in choosing the midterm of four years for the enhancement.5  Thus, appellant was properly sentenced and no remand is necessary.


The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

3.   Between 1987 and 1990, the language now found in subdivision (d) of section 12022.5 was contained in subdivision (c).  (Stats.1987, ch. 1159, § 1, p. 4088;  Stats. 1989, ch. 1167, § 5, p. 4530.)

4.   People v. Reiley, supra, 192 Cal.App.3d 1487, 238 Cal.Rptr. 297 which is relied on by appellant, is inapposite.   The court there was concerned with whether a statement of reasons was required for imposing two enhancements on the same offense.   In deciding the issue it interpreted section 1170.1, subdivision (e ).  (Id., at p. 1490, 238 Cal.Rptr. 297.)   Moreover, Reiley predates both Hill and the 1989 legislation referred to above.

5.   The judge made the following remarks:  “I'm going to deny the defendant a grant of probation as I find under Rule 414 she's been an unsatisfactory probationer and parolee in the past.  [¶]  This was a crime of great seriousness.   It could have very easily resulted in death, and we would be here on a homicide case, be it not for just happenstance.  [¶]  I'm going to sentence the defendant to the Department of Corrections to the mid term of three years, and I will impose an additional four years pursuant to 12022.5 for the enhancement.  [¶] ․ I don't find the factors in aggravation or in mitigation are outweighed one against the other.   Therefore, I'm selecting the mid term on each of those.”

SMITH, Associate Justice.

KLINE, P.J., and PHELAN, J., concur.

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