Filed 6/15/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S202921

v. )

) Ct.App. 4/1 D057392

ERIC HUNG LE et al., )

) San Diego County

Defendants and Appellants. ) Super. Ct. No. SCD212126

____________________________________)

In People v. Rodriguez (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 section 186.22, subdivision (b)(1)(C). We explained that the application of 

both enhancements in that case depended on the defendant‟s use of a firearm, and

that subdivision (f) of section 1170.1 prohibits imposing two sentence 

enhancements 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. 508, quoting § 1170.1, subd. (f), italics omitted.)

 

1 All further statutory references are to the Penal Code.
2

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

subdivision (f) also precludes a trial court from imposing both a firearm 

enhancement under section 12022.5, former 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 “serious felony” under section 186.22, 

subdivision (b)(1)(B) and involved the use of a firearm. In the present case, 

because both enhancements again depend on defendant‟s firearm use, we conclude 

that section 1170.1, subdivision (f) bars the imposition of both enhancements.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 2002, defendants Eric Hung Le and Down 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), count 1); attempted willful, deliberate and premeditated murder (§§ 664, 

187, subd. (a), count 2); discharging a firearm from a motor vehicle (former 

§ 12034, subd. (d), count 3); and assault with a semiautomatic firearm (§ 245, 

subd. (b), counts 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 counts 3 and 4, that Yang 

personally 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 

count 4, assault with a semiautomatic firearm under section 245, subdivision (b). 

As to this count, the jury found true that defendant Yang committed the assault 

while personally using a firearm under former section 12022.5, subdivision 

(a)(1).

2 This sentence enhancement imposes an additional consecutive prison term 

of three, four, or 10 years.3 Also as to count 4, the jury found true that defendant 

Yang committed the assault 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)), which 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, the parties contested the applicability of 

Rodriguez to count 4. In Rodriguez, the defendant fired shots at rival gang 

members, and a jury later found him guilty of assault 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. 1803-1804, 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 

section 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 prohibition 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 count 4; that is, the maximum term 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 violent 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 as 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 enhancement 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, under 
5

Rodriguez, it could not impose terms for both 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, the 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, based on the nature of the offense. 

Defendants appealed their convictions and the People appealed the trial 

court‟s decision to stay the enhancement on count 4. The People argued that the 

trial court should have imposed a five-year enhancement for a serious 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. 

The Court of Appeal affirmed defendants‟ convictions, and it also affirmed 

the trial court‟s stay of the section 12022.5 enhancement. The Court of Appeal 

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 were both based on firearm use involving the single

offense of assault with a semiautomatic weapon. 

We granted the People‟s petition for review.

II. DISCUSSION

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 defendant Yang‟s conviction 
6

on count 4; (2) section 12022.5, subdivision (a)(1) — the personal use of a firearm 

enhancement for count 4; (3) section 186.22, subdivision (b), the enhancement for 

committing count 4 for the benefit of a criminal street gang, which provides 

different levels of enhancement depending on whether count 4 is a violent felony, 

a serious felony, or other felony; (4) section 667.5, which lists what felonies 

qualify as violent felonies; (5) section 1192.7, which lists what felonies qualify as

serious felonies; and (6) section 1170.1, subdivision (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 felony qualifies neither as serious 

or violent, then “the person shall be punished by an additional term of two, three, 

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) are
7

mandatory — all three provisions specify that the additional punishment “shall” be 

imposed. (People v. Vega (2013) 214 Cal.App.4th 286, 295.)

Section 1192.7, which lists the felonies that qualify as serious felonies, 

refers to several crimes that involve the use of a firearm or a deadly weapon. (See 

§ 1192.7, subd. (c)(8), (11), (13), (23), (26), (31)-(33).) Section 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).) 

Subdivision (f) of section 1170.1 prohibits 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 only 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, subdivision (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 pleaded the 

gang enhancement under the violent felony provision, section 186.22, 
8

subdivision (b)(1)(C). As described above, we 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 

base crime a violent felony if the defendant “ „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).) The defendant in Rodriguez

became eligible for the 10-year violent felony enhancement under section 186.22, 

subdivision (b)(1)(C) solely because of his personal use of a firearm, and as 

sentenced his “firearm use was punished under two different sentence 

enhancement provisions, each pertaining to firearm use.” (Rodriguez, supra, at 

p. 509.) This, we held, violated section 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 did 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 

pleaded the gang enhancement under section 186.22, subdivision (b)(1), and the 

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 pleaded the section 186.22 

gang enhancement under subdivision (b)(1) without specifying whether they 

sought enhancement as a serious, violent, or other felony. 
9

we assume the 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 agrees, defendant‟s assault with 

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 felony 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 previously explained, count 4 charged defendant Yang with violating 

section 245, subdivision (b), assault with a semiautomatic firearm. Section 1192.7 

designates several assault-related crimes 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 section 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 may 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 address or decide, whether 

subdivision (b)(1)(A) of section 186.22 might be applicable here.
10

involved a firearm. The crime fell under subdivision (c)(8) of section 1192.7, 

which applies to “any felony in which the defendant personally uses a firearm” 

(id., subd. (c)(8)), or subdivision (c)(23), which applies to “any felony in which 

the defendant personally used a dangerous or deadly weapon” (§ 1192.7, 

subd. (c)(23)), or subdivision (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 

count 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 count 4 as a serious felony.7

Therefore, as was the case in Rodriguez, supra, 47 Cal.4th 501, defendant 

Yang‟s section 186.22 gang enhancement for count 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 firearm.” 

(§ 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 count 3, not count 4. Count 3 charged its own 

sentence enhancements under sections 186.22 and 12022.53. Furthermore, 

1192.7, subdivision (c)(1) designates murder as a serious felony, but this felony 

was the subject of count 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 

1170.1, subdivision (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 principle of Rodriguez. We explained in 

Rodriguez that the relevant concern is whether the underlying felony‟s designation 

as serious or violent is “based on defendant‟s firearm use.” (Rodriguez, supra, 47 

Cal.4th at p. 508.) 

Nor does it matter that the People refrained from specifically pleading that 

the section 186.22 gang enhancement involved the use of a gun. This 

circumstance does not eliminate the need to determine precisely why the People 

contend that count 4 qualifies as a serious felony. Determining whether the 

section 186.22 gang enhancement qualifies as a violent, serious, or other felony 

for count 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 explained, in this matter defendant Yang‟s 

conviction on count 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, the People 

concede that count 4 qualifies as a serious felony because section 1192.7, 

subdivision (c)(31) makes assault with a semiautomatic firearm a serious felony. 

For purposes of section 1170.1, subdivision (f), this circumstance is no different 
12

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 count 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 section 

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 commission 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 matter, there is no question that defendant Yang was 

armed for purposes of count 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 

sufficient 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 People 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 enhancement 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 “enhancement” 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).

Section 186.22 itself repeatedly describes its additional punishment for 

serious or violent felonies as an “enhancement.” (See § 186.22, subds. (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 any 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 186.22, 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 

circumstances, 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 qualify 
14

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 serious felony 

enhancement under the criminal 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-year 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 implicates section 1170.1, subdivision (f)‟s prohibition against

imposing “two or more enhancements . . . for being armed with or using . . . a 

firearm.”

Finally, the 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 to restructure its 

sentencing choices in light of our conclusion that the sentence imposed 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 

allowed for the greatest enhancement to be imposed by leaving intact the 10-year

enhancement under section 186.22, subdivision (b)(1)(C), the People contend our 
15

disposition suggests that we believed the trial court could have sentenced the 

defendant on a section 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 middle 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 precluded 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. Our 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. CONCLUSION AND DISPOSITION

We 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 solely because it involved firearm use. Because both 

enhancements in the present case were based solely on defendant Yang‟s use of a 
16

firearm in the commission of a single offense, section 1170.1, subdivision (f) 

requires that only the greater of the two enhancements may be imposed. This 

conclusion is a logical extension of the holding in Rodriguez, supra, 47 Cal4th 

501. 

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

CANTIL-SAKAUYE, C. J.

WE CONCUR: 

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
1

DISSENTING OPINION BY 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 1192.7, subdivision (c)(31), defines as a 

“ „serious felony.‟ ”

1 The jury also found true that he committed that crime to 

benefit a criminal street gang under section 186.22, subdivision (b)(1), which 

requires the court to enhance the punishment 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 imposition 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 

enhancement 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 

enhancement. Accordingly, section 1170.1, subdivision (f), permits, 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, subdivision 

(b)(1), requires enhanced punishment if the jury finds 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 felony, 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 

Section 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. Because section 1192.7, 

subdivision (c)(31), defines 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 for that offense. The statutory language could hardly be clearer.

To avoid this statutory mandate, the majority invokes section 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 those enhancements 

shall be imposed for that offense. This subdivision shall not limit the imposition of 

any other enhancements applicable to that offense, including an enhancement for 

the infliction of great bodily injury.” (Italics added.) Clearly, this provision 

prohibits imposition of two or more weapon enhancements, but it also expressly 
3

permits imposition of other types of enhancement in addition to a weapon 

enhancement. The enhancement under section 186.22, subdivision (b)(1), is a 

gang enhancement, 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 allegation 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 addition 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 

qualified 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).)

In 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 would be used twice — once to 

impose the firearm use enhancement itself, and again to make 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 an opinion in which I 

joined, we answered the question in the affirmative; using the same weapon 
4

enhancement twice would run afoul of section 1170.1, subdivision (f). Our 

explanation for this conclusion distinguishes that case from this:

“[W]hen the crime is a „violent felony, as defined 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 proved 

as provided in . . . Section 12022.5.‟ (667.5, subd. (c)(8).) Thus, defendant‟s 

firearm use resulted in additional 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 provisions, each pertaining to firearm 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 italicizing 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 (1988) 46 Cal.3d 1, 16.) Accordingly, there 

simply is no dual use of a weapon enhancement.

Not 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 defendant‟s personal use of a firearm in the 

commission of that 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 enhancement 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 any violation of Section 245 if a 

firearm is used . . . .”

The majority seems bemused by the fact the Legislature permits 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 not 

 

(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 the 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 from 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 with 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. [Citations.] 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, it is logical for the Legislature to punish a defendant‟s personal

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 same serious 

felony to benefit a criminal street gang. Section 186.22, subdivision (b)(1)(B), 

does exactly that and no more.

The majority misunderstands 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 

1170.1, 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 fails 
7

to recognize, defendant‟s crime qualifies as a serious felony solely because it 

involved a firearm.” (Maj. opn., ante, at pp. 9-10.) On the contrary, the 

underlying crime — assault with a semiautomatic firearm — qualifies as a serious 

felony because section 1192.7, subdivision (c)(31), specifically defines it as 

serious. Certainly, that underlying crime “involved” 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.

The 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 

enhancement under section 186.22, subdivision (b)(1)(B) solely because of the use 

of that semiautomatic weapon.” (Maj. opn., ante, at p. 14.) But defendant‟s crime 

inherently qualifies as a serious felony under section 1192.7, subdivision (c)(31), 

and, unlike Rodriguez, that crime does not depend on any weapon enhancement.

Recognizing, as it must, that section 1170.1, subdivision (f)‟s limitation 

applies only to “two or more enhancements” (italics added), the 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. 13.) 

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, subdivision (f), 

permits imposition of a gang enhancement in addition to a weapon enhancement.

3

 

3 The majority seems concerned that the prosecution charged that defendant 

committed the underlying 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 intended some punishment for 

committing an assault with a firearm to benefit a criminal street gang. Not 

permitting any additional punishment 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 gang-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 

factual 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 impose 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).

Accordingly, 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 Proceeding

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 appointments by the Supreme Court, for Defendant 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 Attorney, Laura Tanney, James E. Atkins, Gary W. Schons, Craig E. Fisher and Frank 

Jackson, Deputy District Attorneys, for Plaintiff and Respondent.
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 Jackson

Deputy District Attorney

330 W. Broadway, Suite 860

San Diego, CA 92101

(619) 531-4135