Filed 6/15/15



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S 202921
v. ) ) Ct.App. 4/1 D057392 ERIC HUNG LE et al., ) ) San Diego County Defendants and Appellants. ) Super. Ct. No. SCD212126

________________________________ ____ )

I n People v. Rodrig uez (2009) 47 Cal .4th 501 ( Rodriguez ), we held that a defendant‟s single act of personally using a gun during the commission of a felony could not be used to support both a sentence enhancement for personal use of a
firearm under Penal Code section 12022.5 , former subdivision (a)(1 ), 1 and to elevate the punishment for a criminal street gang allegation to a “ violent felony ”
under s ection 186.22, subdivision (b)(1 )(C)

. We explained that the application of both enhancements in that case depended on the defend ant‟s use of a firearm , and
that subdivision (f) of section 1170.1 prohibits imposing two sentence enhanceme nts when both enhancements are “ „ for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense. ‟ ” ( Rodriguez , supra , at p. 50 8, quoting § 1170.1, subd. (f) , italics omitted .)

1 A ll further statutory references are to the Penal Code.2

We granted review in this case to decide whether section 1170.1, subdivision (f

) also preclude s a trial court from imposing both a firearm
enhancement under section 12022.5, form er subdivision (a)(1), and a gang
enhancement under section 186.22, subdivision (b)(1)(B), in connection with a single offense, when the offense is a “ se rious felony ” under section 186.22 , subdivision (b)(1)(B) and involv ed the use of a firearm

. In the pr esent case, because both enhancements again depend on defendant‟s firearm use, we conclude that section 1170.1, subdivision (f) b ars the imposition of both enhan cements.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND On June 14, 2002, defendants Eri c Hung Le and Do wn George Yang of the Tiny Oriental Crips street gang committed a drive

- by shooting outside a San Diego pool hall, believing that they were aiming at rival Asian Crips gang members. Instead, two bullets wounded members of a completely different gang , and a third bullet killed the owner of the pool hall, Don Su. Following a jury trial, defendants were convicted of murder (§ 187,
subd. (a), c ount 1); attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), c ount 2); discharging a firear m from a motor vehicle (former § 12034, subd. (d), c ount 3); and assault with a semiautomatic firearm (§ 245,
subd. (b), c ounts 4 & 5). The jury also found true that the crimes in counts 1 through 5 were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b) (1) ); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission, at least one principal used a firearm (§ 12022.53, subds. (d) & (e) (1) ); and finally, as to c ounts 3 and 4, that Yang
per sonally used a firearm (§ 12022.5, former subd. (a)(1)). The verdict reflects that the jury accepted the prosecution‟s theory that Le was the driver and Yang
was the shooter

. Le was sentenced to a term of 96 years to life and Yang to a term of 101 years to life.3

At issue in this case is the trial court‟s sentencing of defendant Yang on

c ount 4, assault with a semiautomatic firearm under section 245, subdivision (b). As to this count, the jury found true that d efendant Yang committed the assault while per sonally using a firearm under former section 12022.5 , subdivision (a)(1)

. 2 T his sentenc e enhancement imposes an additional consecutive prison term
of three , four , or 10 years. 3 Also as to c ount 4, the jury found true that defendant Yang committed the ass ault for the benefit of a street gang under section 186.22 , subdivision (b)(1), but the charging document did not specify whether it should be enhanced as a “serious felony” (§ 186.22, subd. (b)(1)( B )), w hich imposes an
additional five

- year prison term, or as a “violent felony” (§ 186.22,
subd. (b)(1)(C)), which imposes an additional 10

- year term. At the sentencing hearing, t he parties contested the applicability of Rodriguez to c ount 4. In Rodriguez , the defendant fired shots at rival gang members, and a jury later found him guilty of a ssault with a firearm (§ 245,
subd. (a)(2)) and made findings under two different sentencing enhancement

statutes: (1) that defendant personally used a firearm (§ 12022.5, subd. (a)); and (2) that he committed a “violent felony” to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)) . In rejecting the argument that the section 186.22

2 The 2002 version of section 12022.5 applicable in this case did not differ from the current version in any significant respect . (See Stats

. 1999 , ch

. 129 , § 5 , pp. 1 803

- 1804 , amending § 12022.5 .) Accordingly, subsequent citations in this opinion will not distinguish between the two versions of the statute.
3 Generally, a defendant is exempt from a section 12022.5 enhancement if the “use of a firearm is an element of” the charged offense. (§ 12022.5, subd. (a).) But section 12022.5 contains an exception if a defendant commits a section 245 violation using a firearm. (§ 12022.5, subd. (d).) Therefore, despite the fact that defendant Yang‟s section 245, subdivision ( b) violation included the element of the use of a semiautomatic firearm, his crime is not exempt from enhancement under section 12022.5.4

enhancement applied not only to the defendant‟s use of a firearm but also to the allegation of committing a felony to benefit a street gang, we explained that the defendant became eligible for the 10

- year gang enhancement for a violent felony

“ only because he „use[d] a firearm which use [was] charged and proved as provided
in .

. . Section 12022.5.‟ ” ( Rodriguez , supra , 47 Cal.4th at p. 509, quoting § 667.5, subd. (c)(8).) In other words, the only factor that qualified the defendant‟s assault as a violent felony under section 667.5 was his use of a firearm

— and that, in turn, made him eligible for the 10

- year gang enhancement under

sec tion 186.22, subdivision (b)(1)(C) for violent felonies. Because both the section 12022.5 personal use enhancement and the section 186.22 gang enhancement for a violent felony depended on the defendant‟s use of a firearm , the
sentence violated the prohibi tion contained in section 1170.1, subdivision (f) against enhancing a sentence twice for firearm use. ( Rodriguez , supra , at p. 509.) In the present case, the prosecutor sought to impose the upper term on defendant Yang for c ount 4 ; that is, the maximum te rm of nine years for the
assault with a firearm , along with the maximum term of 10 years for the firearm use enhancement under section 12022.5, subdivision (a)(1). But the prosecutor recognized that, if the section 186.22 enhancement were treated as a vio lent felony
under section 186.22 , subdivision (b)(1)(C) , Rodriguez and section 1170.1, subdivision (f) would apply to bar an additional 10

- year enhancement. Accordingly , the prosecutor asked the trial court to treat the section 186.22
enhancement simply a s a “gang allegation” that is “not for being armed” and to impose a five

- year enhancement under subdivision (b)(1)(B) of that statute

. In essence, the prosecutor argued that because the complaint did not specifically allege that the section 186.22 enhance ment was a violent felony under subdivision (b)(1)(C) of that statute , it did not constitute an “enhanced gang allegation” based
on the use of a firearm

. The trial court disagreed. The court believed that, under5

Rodriguez , it could not impose terms for b oth enhancements because the jury‟s findings made defendant‟s assault a violent felony under section 667.5, thereby making the applicable enhancement the same 10

- year term under 186.22, subdivision (b)(1)(C) that was at issue in Rodriguez

. Accordingly , th e court imposed the 10

- year term for that enhancement, but stayed any sentence enhancement under section 12022.5, subdivision (a). It noted, however, that if the court could have applied that enhancement it would have chosen the upper term of 10 years, ba sed on the nature of the offense. Defendants appealed their convictions and the People appealed the trial court‟s decision to stay the enhancement on c ount 4. The People argued that the
trial c ourt should have imposed a five

- year enhancement for a serio us felony under section 186.22, subdivision (b)(1)(B) because it had been “generically ” pleaded in the complaint without reference to whether it was a serious or violent felony or to the firearm use allegation.
T he C ourt of A ppeal affirmed defendants‟ co nvictions, and it also affirmed the trial court‟s stay of the section 12022.5 enhancement

. The C ourt of A ppeal applied the holding of Rodriguez , concluding that the generic pleading of the gang enhancement allegation in the present case was a “distinction without a
difference , ” and it held that the record supported the finding that the personal gun use and gang enhancements w ere both based on firearm use involving the single offense of assault with a semiautomatic weapon

. We granted the People‟s petition for review.
II. D ISCUSSION
A. Overview of the Applicable Statutes The statutes at issue here are (1) section 245, subdivision (b), assault with a
semiautomatic firearm

— the base felony crime for d efendant Yang‟s conviction6

on c ount 4; (2) section 12022 .5, subdivision (a)(1)

— the personal use of a firearm
enhancement for c ount 4; (3) section 186.22, subdivision (b), the enhancement for committing c ount 4 for the benefit of a criminal street gang , which provides different levels of enhancement depending on whether c ount 4 is a violent felony, a serious felony, or other felony; (4) section 667.5, which lists what fel onies qualify as violent felonies; (5) section 1192.7, which lists what felonies qualify as
serious felonies ; and (6) section 1170.1, subdivis ion (f), which prohibits imposing

sentences on multiple enhancements of a single offense involving the use of a firearm or dangerous or deadly weapon

. Section 186.22 , the gang enhancement statute, is particularly important to
the question presented here. As explained, it provides different levels of enhancement for the base felony if that felony is “ 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).) If the base felony qualifies as a violent felony under the list of felony crimes contained in section 667.5, then “ the person shall be punished by an additional term of 10 years. ” ( § 186.22, subd

. (b)(1)(C).) If the base felony qualifies as a serious felony under the list of felony crimes contained in section 1192.7, then “ the person shall be punished by an additional term of five
years .” (§ 186.22, subd

. (b)(1)(B).) If the base f elony qualifies neither as serious or violent, then “ the person shall be punished by an additional term of two, th ree, or four years at the court‟ s discretion. ” (§ 186.22, subd

. (b)(1)(A).) Section 186.22, subdivision (b)(1)‟s three sentence provisions, therefore, reflect the intention to impose progressively longer sentence enhancements based on the severity of the felony categorized across three tiers. It is also important to note
that the sentence enhancements in section 186.22 , subdivision (b)(1) are7

mandatory

— all three provisions specify that the additional punishment “shall” be imposed. ( People v. Vega (2013) 214 Cal.App.4th 286, 29 5

. ) Section 1192.7, which lists the felonies that qualify as serious felonies,
refers to several crimes that invol ve the use of a firearm or a deadly weapon . (See § 1192.7, subd. (c)(8), (11), (13), (23), (26), (31)

- (33).) S ection 667.5, which lists the felonies that qualify as violent felonies, refers to only one crime that necessarily involves the use of a firearm or deadly weapon

— “ any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. ” (§ 667.5, subd. (c)(8).)
S ubdivision (f) of section 1170.1 pro hibits multiple enhancements of punishment as to a single offense for being armed with or using a firearm or dangerous or deadly weapon. That section states , in part : “ When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” (§ 1170.1, subd. (f).) Thus, the sentencing limitation of section 1170.1, subdivision (f), can apply, not on ly for enhancements involving the personal use of a firearm in the commission of the offense, but also if the enhancement is imposed for simply “being armed” during the commission of the offense.
As in Rodriguez , we must decide whether section 1170.1, subd ivision (f) prohibits the imposition of sentence on both enhancements in the present case

— the personal use of a firearm enhancement under section 12022.5,
subdivision (a)(1) and the gang enhancement under section 186.22,
subdivision (b) (1) . In Rodriguez , we concluded that the imposition of sentence on both enhancements violated section 1170.1 because the People had ple a d ed the gang enhancement under the violent felony provision, section 186.22,8

subdivision (b)(1)( C) . As described above, w e examined the list of violent
felonies contained in section 667.5 and determined that it was solely gun use that made the defendant‟s crime qualify as a violent felony under that section

. Specifically, we referred to section 667.5, subdivision (c)(8), which makes the
b ase crime a violent felony if the defendant “ „ use[d] a firearm which use [was]
cha rged and proved as provided in .

. . Section 12022.5. ‟ ” ( Rodriguez , supra , 47 Cal.4th at p. 509, quoting § 667.5, subd. (c) (8).) T he defendant in Rodriguez became eligib le for the 10

- year violent felony enhancement under section 186.22,
subdivision (b)(1)(C) solely because o f his personal use of a firearm , and as
sentenced his “firearm use was punished under two different sentence enhancement provisions, each pertaining t o firearm use.” ( Rodriguez , supra , at
p. 509.) This, we held, violat ed s ection 1170.1, subdivision (f)‟s prohibition against imposing multiple firearm sentence enhancements for a single base crime. In the present case, unlike in Rodriguez , the People d id not specify whether their complaint sought to impose the section 186.22 gang enhancement as a violent felony, serious felony, or other felony. Instead, the People generically ple a d ed the gang enhancement under section 186.22, subdivision (b)(1), and th e prosecutor argued at sentencing that the trial court should impose a five

- year enhancement. 4 Because subdivision (b)(1)(B) is the only provision of section 186.22, subdivision (b)(1) that calls for the imposition of a five

- year enhancement,

4 In fact, regarding all five counts, the People ple a d ed the section 186.22 gang enhancement under subdivision (b)(1) without specif y ing whether they sought enhancement as a serious, violent, or other felony.9

we assume th e People sought to categorize that enhancement as a serious felony for purposes of section 1192.7. 5

B. Whether Count 4 Qualifies as a Serious Felony Involving the Use of a Firearm
As the trial court concluded and defendant a grees , defendant‟s assault wi th
a semiautomatic firearm qualified as a violent felony under section 667.5, subdivision (c). We need not decide whether, as defendant argues, the trial court
lacked discretion to designate the gang enhancement as anything other than one
for a violent fe lony under section 186.22, subdivision (b)(1)(C), because even if the trial court retained discretion to designate the crime as a serious felony for the purpose of section 186.22, subdivision (b)(1)(B), under the facts of this case, the crime would qualify as a serious felony solely because it involved firearm use. 6 As previou sly explained, c ount 4 charged d efendant Yang with violating section 245, subdivision (b), assault with a semiautomatic firearm. Section 1192.7 designates several assault

- related cri mes as serious felonies , but defendant‟s crime is not a serious felony by virtue of any of these provisions. Rather, as the dissent fails to recognize, defendant‟s crime qualifies as a serious felony solely because it

5 The Court of Appeal did not consider whether such a “generic” pleading is permissible, or whether the prosecutor may wait until sentencing to specify under which provision of section 186.22, subdivision (b)(1) the People seek to enhance the sentence. We asked the parties to submit additional briefing on this issue, and the parties both contend that the prosecution met its pleading burden by generically pleading se ction 186.22, subdivision (b)(1). Specifically, the parties claim that such pleading is permissible because the state cannot know until the jury‟s verdict whether defendant will be convicted of other charged crimes , enhancements , or lesser offenses that m ay dictate which subparagraph of subdivision (b)(1) is applicable. Because the parties do not contest matters of notice and the sufficiency of the pleading, we express no opinion on these issues.
6 Similarly, the parties have not raised, nor do we addre ss or decide, whether subdivision (b)(1)(A) of section 186.22 might be applicable here.10

involved a firearm. The crime fell u nder s ubdivision (c)(8) of section 1192.7,
which applies to “ any felony in which the defendant personally uses a firearm ” ( i d

. , subd. (c)(8)) , or s ubdivision (c)(23) , which applies to “ any felony in which the defendant personally used a dangerous or deadly weapon ” (§ 1192.7,
subd. (c)(23)) , or s ubdivision (c)(31) , which applies to “ assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm .” These three provisions constitute the sole bases under which the conduct described in

c ount 4 would be a serious felony , and they all clearly implicate the use of a
firearm. No other provision of section 1192.7, subdivision (c), appears applicable

to qualify c ount 4 as a serious felony. 7 Therefore, as was the case in Rodriguez , supra , 4 7 Cal.4th 501, d efendant Yang‟s section 186.22 gang enhancement for c ount 4 , regardless of whether it qualified as a serious or violent felony under subdivision (b)(1)(B) or (b)(1)(C) , is an enhancement “imposed for being armed with or using

. . . a firear m.” (§ 1170.1, subd. (f).) Under section 1170.1, subdivision (f), the underlying felony , based on section 245, subdivision (b), could not be enhanced for use of a firearm
both under section 12022.5, subdivision (a), and section 186.22 , subdivision (b)(1) . Rather, section 1170.1 required that only the greater of the two
enhancements

— in this case, the enhancement under section 12022.5

— could be imposed.

7 Another provision of section 1192.7 designates shooting from a vehicle as a serious felony ( id

. , subd. (c)(36)), but this felony, former section 12034 , subdivision (d ), was the subject of c ount 3, not c ount 4. Count 3 charged its own sentence enhancements under sections 186.22 and 12022.5 3. Furthermore, 1192.7, subdivision (c)(1) designates murder as a serious felony, but this felony was the subject of c ount 1.11

C. The People’s Arguments The People , along with the dissent, advance a number of arguments urging that section 1170.1, subdivision (f), does not apply here. We reject these
contentions. The People repeat the same argument they raised in Rodriguez

— that the section 186.22 enhancement is not subject to the limiting language of section
117 0.1, subdivisi on (f) because that enhancement is for committing a felony to benefit a street gang, not for a defendant‟s firearm use. But accepting such an argument would defeat the core pr inciple of Rodriguez . W e explained in Rodriguez that the relevant concern is wh ether the underlying felony‟s designation as serious or violent is “based on defendant‟ s firearm use .” ( Rodriguez , supra , 47 Cal.4th at p. 50 8 .)
Nor does it matter that the People refrained from specifically plead ing that the section 186.22 gang enhance ment involved the use of a gun. This circumstance does not eliminate the need to determine precisely why the People
contend that c ount 4 qualifies as a serious felony. Determining whether the section 186.22 gang enhancement qualifies as a violent, seriou s, or other felony
for c ount 4 requires reference to the statutory schemes defining such
classifications based on the underlying conduct for which defendant was convicted
under that count

. As we have expl ained, in this matter d efendant Yang‟s
conviction o n c ount 4 can be designated as a violent felony under section 667.5, subdivision (c)(8) only because of his use of a firearm, but that same conduct also
constitutes a serious felony under section 1192.7, subdivision (c) , likewise under provisions that are based on the use of a firearm. Indeed, on appeal, t he People
concede that c ount 4 qualifies as a serious felony because section 1192.7, subdivision (c)(31) makes assault with a semiautomatic firearm a serious felony

. F or purposes of section 1170.1, subdi vision (f) , this circumstance is no different12

from that presented under Rodriguez . Although there are many other crimes designated as serious or violent felonies that do not necessarily involve the use of a firearm, just as was the case in Rodriguez , they are not implicated here. The People further argue that neither the underlying felony in c ount 4 nor the section 186.22, subdivision (b)(1) gang enhancement required the personal use of a firearm, thereby rendering inapplicable the limiting language of sec tion 1170.1, subdivision (f). But section 1170.1, subdivision (f) makes no such distinction. The sentence limitation applies “ [w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a
firearm in the co mmission of a single offense.” (§ 1170.1, subd

. (f), italics added.) Thus, section 1170.1, subdivision (f) , is not limited to a defendant‟s personal use of a firearm but includes being armed with such a weapon during the commission
of the base offense. In this mat ter, there is no question that d efendant Yang was armed for purposes of c ount 4. The People and the dissent reason that, once a defendant is convicted of a violation of section 245, subdivision (b), the simple fact of that conviction is
sufficie nt to additionally punish the defendant under section 186.22, subdivision (b)(1)(B) for committing that particular crime to benefit a criminal street gang, and this additional punishment is unrelated to any involvement of a firearm in that
crime. The Peop le and the dissent argue that although section 1170.1, subdivision (f) can apply to a weapon enhancement that is used to qualify a defendant for a higher tier of the gang enhancement ( Rodriguez , supra , 47 Cal.4th at p. 509), it cannot apply to the gang enh ancement itself, and therefore it does not apply when

a substantive offense is used to qualify a defendant for a higher tier of the gang
enhancement. They argue, therefore, that because a conviction under section 245, subdivision (b) is not an “enhancemen t” for purposes of section 1170.1, subdivision (f) , a gang enhancement based on that section 245, subdivision (b)13

conviction (§ 186.22, subd. (b)(1)(B)) is also not an “enhancement” for purposes of section 1170.1, subdivision (f)

. S ection 186.22 itself rep eatedly describes its additional punishment for serious or violent felonies as an “enhancement.” (See § 186.22, subd s . (c) [“If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of
the enhancement enumerated in subdivision (b) , the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof” ( italics added )], 186.22, subd. (g) [“Notwithstanding an y other law, the court may strike the additional punishment for the enhancements provided in this section

. . .” ( italics added )] .) Consequently, it cannot be said that the serious felony offense of
assault with a semiautomatic firearm under section 18 6.2 2, subdivision (b)(1)(B) can be distinguished as a substantive offense and not an “enhancement,” as that
term is used by both sections 186.22 and 1170.1, subdivision (f). (See People v.
Morris (1988) 46 Cal.3d 1, 16 [“ Firearm enhancements, like special
ci rcumstan ces, are not substantive crimes”].) Furthermore, the use of a semiautomatic firearm is a necessary element of section 245, subdivision (b). (CALJIC No. 9.02.1 [ “ In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was committed with a

. . . semiautomatic firearm”].) Without the element concerning the use of a semiautomatic firearm, the conduct would constitute a simple assault, a crime not listed as a serious felony under section 1192.7, subdivision (c)

— a circumstance the dissent fails to address . The assault with a semiautomatic firearm here, therefore, is a serious felony because it involved a firearm. In other words, it cannot be doubted that being armed with a specific kind of gun is an element of assault with a semiautomatic firearm under section 245, subdivision (b)

. Without that element, the crime would not qualify14

for the additional five

- year enhancement under section 186.22, subdivision (b)(1)(B) , part of the criminal gang statute. Accordingly, it is the element concerning the use of a semiautomatic firearm that elevates the crime beyond a simple assault and causes it to be listed as a serious felony, which, in turn, qualifies the conduct for a five

- year s erious felony
enhancement under the cri minal gang statute. Similar to the circumstances in Rodriguez , it was solely the use of a semiautomatic weapon that made the
defendant Yang‟s crime qualify as a serious felony, and he became eligible for the
five

- yea r serious felony enhancement under section 186.22, subdivision (b)(1)(B) solely because of the use of that semiautomatic weapon. Thus, defendant Yang was exposed to two different sentence enhancement provisions, each pertaining to firearm use, which impli cates section 1170.1, subdivision (f)‟s prohibition against imposing “two or more enhancements

. . . for being armed with or using .

. . a firearm.” Finally, t he People assert that our dispositional language in Rodriguez indirectly supports their position. In Rodriguez , following our conclusion that the sentence imposed in that matter violated section 1170.1, subdivision (f), we further concluded that the Court of Appeal erred by ordering the trial court to strike the imposition of punishment under section 12022.5, subdivision (a) for the defendant‟s personal use of a firearm. Instead, we explained that the correct remedy was to reverse the trial court‟s judgment and remand the matter back for resentencing in order to “give the trial court an opportunity t o restructure its sentencing choices in light of our conclusion that the sentence impos ed here violated section 1170.1‟ s subdivision (f) .” ( Rodriguez , supra , 47 Cal.4th at
p. 509.) Because simply striking the sentence under section 12022.5 would have
all owed for the grea test enhancement to be imposed by leaving intact the 10

- year enhancement under section 186.22, subdivision (b)(1) (C) , t he People contend our15

disposition suggests that we believed the trial court could have sentenced the
defendant on a sect ion 186.22 gang enhancement based on another part of subdivision (b)(1) not involving a violent felony.
But this argument ignores the fact that the trial court in Rodriguez had
chosen the mid

dle term of four years for the three underlying base felonies of
assault with a firearm . It also imposed sentence on both the gang enhancement under section 186.22, subdivision (b)(1)(C) and the personal use of a firearm enhancement under section 12022.5, subdivision (a) . Because we concluded that section 1170.1 precl uded the imposition of sentence on both enhancements , this left the opportunity for the trial court to restructure its sentence by imposing the

upper terms for the base felonies, if it was inclined to compensate for the loss of
one of the enhancements. Ou r decision in Rodriguez , therefore, carried no implication regarding whether section 1170.1, subdivision (f) could apply to nonviolent felonies under section 186.22, subdivision (b)(1) or another part of that
subdivision

. III

. C ONCLUSION AND D ISPOSITION W e conclude that a trial court is precluded from imposing both a firearm enhancement under section 12022.5, subdivision (a)(1) and a serious felony gang enhancement under section 186.22, subdivision (b)(1)(B) when the crime qualifies as a serious felony sol ely because it involved firearm use. Because both
enhancements in the present case were based solely on defendant Yang ‟s use of a16

firearm in the commission of a single offense, section 1170.1, subdivision (f) requires that only the greate r of the two e nhancements may be imposed. This conclusion is a logical extension of the holding in Rodriguez , supra , 47 Cal4th
501

. For the foregoing reason s, the Court of Appeal‟s judgment is affirmed.

CANTIL

- SAKAUYE, C. J.
WE CONCUR:
WERDEGAR, J. CORRIGAN, J. L IU, J. CUÉLLAR, J. KRUGER, J.1 DISSENTING OPINION B Y CHIN, J.

Among other crimes, defendant Down George Yang was convicted of
assault with a semiautomatic firearm under Penal Code section 245 , subdivision (b), a crime that Penal Code section 119 2

. 7 , subdivision (c)(31), define s as a

“ „serious felony. ‟ ” 1 The jury also found true that he committed th at crime to benefit a criminal street gang under section 186.22, subdivision (b)(1), which requires the court to enhance the punishm ent for a serious felony by an additional five years. The majority, however, relying on section 1170.1, subdivision (f), as interpreted in People v. Rodriguez (2009) 47 Cal.4th 501 ( Rodriguez ), overrides this clear legislative mandate and prohibits imposi tion of the enhanced penalty for committing a serious felony to benefit a criminal street gang

. I dissent. This case is entirely different from Rodriguez , supra , 47 Cal.4th 501; the difference demands a different result. In Rodriguez , imposing the gang

e nhancement for a violent felony would have caused a firearm use enhancement to be used twice, in violation of section 1170.1, subdivision (f). Here, imposing the gang enhancement for a serious felony does not duplicate any firearm
enhancemen t. Accordingly, section 1170.1 , subdivision (f), p ermits, rather than prohibits, imposition of the gang enhancement for a serious felony.

1 All future statutory citations are to the Penal Code.2

The issue here should be straightforward. Section 186.22, subdivi sion (b)(1), requires enhanced punishment if the jury f inds the defendant committed a felony to benefit a criminal street gang. The prescribed punishment is as follows: “(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court‟s
discretion. “(B) If the felony is a serious felon y, as defined in subdivision (c) of
Section 1192.7 , the person shall be punished by an additional term of five years. “(C) If the felony is a violent felony, as defined in subdivision (c) of
Secti on 667.5, the person shall be punished by an additional term of 10 years.” (Italics added.) Subdivision (c)(31) of section 1192.7 defines “serious felony” as including “assault with a .

. . semiautomatic firearm .

. . in violation of Section 245,” which is precisely the underlying offense in this case. B ecause section 1192.7 , subdivision (c)(31), defin es the underlying offense as a serious felony, section 186.22, subdivision (b)(1)(B), requires the trial court to impose an additional term of five years f

or that offense

. The statutory language could hardly be clearer.
T o avoid this statutory mandate , t he majority invokes s ection 1170.1, subdivision (f), as somehow prohibiting imposition of the gang enhancement for the underlying serious felony of assault with a semiautomatic firearm . That
subdivision provides in its entirety : “When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of tho se enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancement s applicable to that offense , including an enhancement for the infliction of great bodily injury

. ” (Italics added.) Clearly, t his provision prohibits imposition of two or more weap on enhancements , but it also expressly3

permits imposition of other types of enhancement in addition to a weapon
enhancement. T he enhancement under section 186 .22, subdivision (b ) (1), is a

gang enhancem ent, not a weapon enhancement. Therefore, section 1170.1, subdivision (f), permits, rather than prohibits , imposition of the gang enhancement
for a serious felony. The majority finds somehow relevant the fact that the jury also found true
an enhancement a llegation that defendant personally used a firearm in committing the underlying offense of assault with a semiautomatic firearm

. But, as noted, section 1170.1, subdivision (f ), permits imposition of other enhancements (such as a gang enhancement) in addit ion to imposition of a weapon enhancement. This brings us to Rodriguez , supra , 47 Cal.4th 501. In Rodriguez , the
defendant was convicted of assault with a firearm under section 245, and the jury found true a personal firearm use enhancement under section 12022.5 and a gang enhancement under section 186.22, subdivision (b)(1). But the issue in Rodriguez was whether the trial court could impose the 10

- year enhancement for a violent felony under section 186.22, subdivision (b)(1)(C). The underlying felony
q ualified as a violent felony under section 667.5 only because it was a “felony in which the defendant uses a firearm which use has been charged and proved as provided in .

. . Section 12022.5

. . . .” (§ 667.5, subd. (c)(8).)
I n Rodriguez , supra , 47 Cal.4th 510, there was only one weapon
enhancement ( the one under § 12022.5), but, if the gang enhancement for a violent felony were imposed, that same enhancement woul d be used twice

— once to impose the firearm use enhancement itself, and again to m ake the underlying crime a violent felony

. The question before us was whether using the same weapon enhancement twice would violate the proscription in section 1170.1, subdivision (f) , against multiple weapon enhancements. In a n opinion in which I joined , we answered the question in the affirmative; using the same weapon4

enhancement twice would run afoul of section 1170.1, subdivision (f). Our explanation for this conclusion distinguish es that case from this: “[W]hen the crime is a „violent felony, as de fined in subdivision (c) of Section 667.5, ‟ section 186.22‟s subdivision (b)(1)(C) calls for additional punishment of 10 years. Here, defendant became eligible for this 10

- year punishment only because he „use[d] a firearm which use [was] charged and prove d as provided in .

. . Section 12022.5.‟ (667.5, subd. (c)(8).) Thus, defendant‟s
firearm use resulted in ad ditional punishment not only under section 12022.5‟s subdivision (a) (providing for additional punishment for personal use of a firearm)
but also under section 186.22‟s subdivision (b)(1)(C), for committing a violent felony as defined in section 667.5, subdivision (c)(8) (by personal use of firearm) to benefit a criminal street gang. Because the firearm use was punished under two
different sentence enhancement p rovisions, each pertaining to fi rearm use, section
1170.1 ‟s subdivision (f) requires imposition of „only the greatest of those enhancements‟ with respect to each offense.” ( Rodriguez , supra , 47 Cal.4th at p.
509 , original italics .)
Our itali cizing the word “only” in this discussion from Rodriguez makes clear that our holding was predicated on the fact that the underlying felony was “violent” only due to the section 12022.5 enhancement for personal firearm use. Here, in contrast to Rodriguez , defendant‟s felony conviction qualifies as a serious felony not because of any firearm use enhancement . Instead , the underlying
crime

— assault with a semiautomatic firearm

— itself qualifies as a serious felony because section 1192.7, subdivision (c)(31) , makes assault with a semiautomatic firearm a serious felony

. 2 A substantive crime is not an

2 The majority states that “the People concede that count 4 [ i.e., assault with a semiautomatic firearm ] qualifies as a serious felony because section 1192.7,
(footnote continued on next page)5

enhancement. ( People v. Morris (19 88 ) 46 Cal.3d 1, 16 .) Accordingly, t here simply is no dual use of a weapon enhancement.
N ot only does the statutory language mandate imposition of the gang enhancement for a serious felony, it makes eminent sense for the Legislature to prescribe separate punishment for (1) the underlying crime of assault with a semiautomatic firearm, (2) for d efendant‟s personal use of a firearm in the
commission of th at crime, and (3) for defendant‟s committing a serious felony to benefit a criminal street gang. Each punishes a different aspect of defendant‟s
criminal behavior

. Normally, the firearm use enhan cement may not be imposed if “use of a firearm is an element of that offense.” (§ 12022.5, subd. (a).) But section 12022.5, subdivision (d), states that notwithstanding this limitation, “the additional term provided by this section shall be imposed for a ny violation of Section 245 if a
firearm is used



### . . . . ” The majority seems bemused by the fact the Legislature pe rmits a firearm
use enhancement to attach to a conviction for assault with a firearm. It states that “despite the fact that defendant Yang‟s section 245, subdivision (b) violation
included the element of the use of a semiautomatic firearm, his crime is no t

(footnote continued from previous page) subdivision (c)(31) makes assault with a semiautomatic forearm a serious felony.” (Maj. opn., ante , at p. 11.) Rather than being a concession, however, stressing that the underlying felony is itself defined as serious and is not, as in Rodriguez , supra , 47 Cal.4th 501, dependent on a firearm use enhancement to qualify as violent, is the centerpiece of the People‟s argument

— and of mine. Because t he underlying substantive offense , itself defined as a serious felony, is not an enhancement, there is no dual use of a weapon enhancement. It is an argument the majority never confronts, choosing instead to describe it as a concession and then ignore it

.6

exempt fro m enhancement under section 12022.5

. ” (Maj. opn., ante , at p. 3,
fn. 3 .) But the explanation for the Legislature‟s action is simple . As we recently explained, the firearm use enhancement does not duplicate the underlying offense
of assault w ith a firearm. “A defendant may be vicariously guilty of assault with a firearm even if that defendant did not personally use the firearm. [Citation.] But
the firearm

- use enhancement applies only to a defendant who „personally uses ‟ the firearm. [Citat ions.] Thus, the enhancement does not attach to everyone guilty of assault with a firearm but only to those who personally use the firearm.” ( People
v. Ahmed (2011) 53 Cal.4th 156, 161

- 162, fn. 2.) Thus, i t is logical for the Legislature to punish a defendant‟s person al firearm use in addition to punishing the underlying crime of assault with a firearm,
which does not require personal use . Similarly, it is logical for the Legislature to prescribe additional punishment when a defendant commits the sam e serious felony to benefit a criminal street gang. S ection 186.22, subdivision (b)(1)( B ),
does exactly that and no more

. The majority misunderstand s the difference between a substantive offense and an enhancement, and the difference between the elements of the underlying crime of assault with a firearm and the personal firearm use enhancement. It concludes the introductory portion of its opinion by stating that “because both
enhancements .

. . depend on defendant‟s firearm use, we conclude that section
1 170.1, subdivision (f) bars the imposition of both enhancements.” (Maj. opn.,

ante , at p. 2.) But the gang enhancement for a serious felony is based solely on defendant‟s conviction of assault with a semiautomatic firearm. That conviction
does not depend on defendant‟s firearm use. ( People v. Ahmed , supra , 53 Cal.4th at pp. 161

- 162, fn. 2.) Similarly, the majority later states that “the crime would qualify as a serious felony solely because it involved firearm use,” and that “ as the dissent fails7

to recognize, defendant‟s crime qualifies as a serious felony solely because it involved a firearm.” (Maj. opn., ante , at p p. 9

- 10 .) On the contrary, t he underlying crime

— assault with a semiautomatic firearm

— qualifies as a serious felony because sect ion 119 2. 7, subdivision (c)(31), specifically defines it as
serious. Certainly, th a t underlying crime “i nvolved” a firearm, but the underlying
crime is not an enhancement

. The only weapon enhancement that exists here does
not involve merely a firearm or firearm use, but instead involves the defendant‟s personal use of a firearm.
T he majority also states: “Similar to the circumstances in Rodriguez , it was solely the use of a semiautomatic weapon that made

. . . defendant Yang‟s crime qualify as a serious felony, and he became eligible for the five

- year serious felony
enhancem ent under section 186.22, subdivision (b)(1)(B) solely because of the use of that semiautomatic weapon.” (Maj. opn., ante , at p. 14.) But d efendant‟s crime inherently qualifies as a serious felony under section 1192.7, subdivision (c)(31),
and , unlike Rodriguez , that crime doe s not depend on any weapon enhancement

. Recog n izing, as it must, that section 1170.1, subdivision (f)‟s limitation applies only to “two or more e nhancements ” (italics added), t he majority opinion

states that “ [ s ] ection 186.22 itself repeatedly describes its additional punishment for serious or violent felonies as an „enhancement. ‟ ” (Maj. opn., ante , at p. 1 3 .)
The statement is obviously correct ; the additional punishment under section 186.22, subdivision (b)(1) , is an enhancement . But that enhancement is for committing the underlying crime to benefit a criminal street gang; it is a gang enhancement, not a weapon enhancement. Section 1170. 1, su bdivision (f), permits imposi tion of a gang enhancement in addition to a weapon enhancement

. 3

3 The majority seems concerned that the prosecution charged that defendant committed the underl y ing crime to benefit a criminal street gang but did not
(footnote continued on next page)8

If, as it does, the majority prohibits imposition of the enhancement for a serious felony, then at least it should remand the matter for the trial court to impose the lower enhancement for ordinary felonies under section 186.22, subdivision (b)(1)(A). Surely the Legislature intend ed some punishment for committing an assault with a firearm to benefit a criminal street gang. Not permitting any additional pun ishment would judicially carve out an exception to the gang enhancement for assault with a firearm, which cannot be what the Legislature intended. Such an interpretation would be especially perverse

— assault with a firearm is among the most common of gan g

- related crimes. In short, because the felony of assault with a semiautomatic firearm is inherently serious under section 1192.7, subdivision (c)(31), because defendant was convicted of that crime, and because there is neither a second weapon
enhancement nor (as in Rodriguez , supra , 47 Cal.4th 501) dual use of one weapon

(footnote continued from previous page) additionally allege which of the punishments the trial court should impose. (Maj. opn., ante , at p. 9, fn. 5.) I see no problem, and neither do the parties. They correctly agree that the charging document may simply allege the gang enhancement under section 186.22, subdivision (b)(1), and leave it to the court to impose the correct punishment if the jury finds the allegation true. Whether the defendant committed the underlying crime to benefit a criminal street gang is a f actual question for the jury to decide. But which of the three possible punishments to impose is a legal question for the court to decide. In this case, for example, section 1192.7, subdivision (c)(31), makes the underlying conviction for assault with a semiautomatic firearm a serious felony as a matter of law, not fact. Charging documents do not normally allege what punishment the court should impose if the jury finds the defendant guilty or finds an enhancement allegation true. No reason appears to im pose such a requirement here.9

enhancement, the trial court was required to impose the enhancement for committing a serious felony to benefit a criminal street gang under section 186.22, subdivision (b)(1)(B).
Accor dingly, I dissent. CHIN, J.1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Le

__________________________________________________________________________________ Unpublished Opinion Original Appeal Original Procee ding Review Granted XXX 205 Cal.App.4th 739 Rehearing Granted

__________________________________________________________________________________ Opinion No. S202921 Date Filed: June 15 , 2015

_______________________________________________________________ ___________________ Court: Superior County: San Diego Judge: Charles G. Rogers

__________________________________________________________________________________ Counsel:

Sharon M. Jones and Arthur Martin , under appointment s by the Supreme Court, for D efendant and Appellant Down George Yang. Laura P. Gordon, under appointment by the Supreme Court, for Defendant and Appellant Erik Hung Le. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General ; Bonnie M. Dumanis, District A tto r ney, Laura Tanney , James E. Atkins, G ary W. Schons , Craig E. Fisher and Frank J ackson , Deput y Dist r i c t Attorneys, for Plaintiff and Responde nt.2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Arthur Martin P.O. Box 5084 Klamath Falls, OR 97601 (541) 273

- 8738

Frank J ackson Deputy District Attorney 330 W. Broadway, Suite 860 San Diego, CA 92101 (619) 5 31

- 4135