Filed 6/25/13 P. v. Rouston CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. GEORGE ROUSTON, Defendant and Appellant. D060911

(Super. Ct. No. SCD234128)

APPEAL from a judgment of the Superi or Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Patrick Morgan Ford fo r Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, Melissa Mandel and Charles Ragland, Deputy Attorneys General, for Plaintiff and Respondent. George Rouston, a minor charged as an adult, pled guilty to assault with a semiautomatic firearm, and admitted enha ncements for committi ng the crime for the benefit of a gang, personal use of a firearm, a nd personal infliction of great bodily injury.2 On appeal, he asserts the tria l court improperly punished him multiple times for his single firearm use. We find no reve rsible error and affirm.
FACTUAL AND PROCEDUR AL BACKGROUND Defendant's offense, as summarized in the probation report, occurred on April 6, 2011, when defendant and several other ma les encountered the victim (Christopher Morales) and one or more other males. Du ring the encounter, defendant pulled out a gun and fired several shots, and then he and his co mpanions fled the scen e. Morales was shot three times; one of the bullets cau sed him to lose the ability to feel or move his leg and he was required to undergo surgery. Morales told the police that at the time of the crime he was "hanging out with his friends"; he ran when he heard gunshots an d fell when he was shot; he had no gang affiliation; and he did not know who shot him or why he was shot. Defendant was identified as the shooter by an anonymous caller to the police and by two witnesses at a photo lineup. Defendan t was arrested at the home where he resided with his grandmother. Defe ndant initially denied knowle dge of the shooting, but admitted his involvement when told that he had been identified by witnesses. According to defendant, he and Morales were members of rival gangs that were engaged in disputes about "tag ging" and disrespect of defenda nt's gang. Defendant heard that Morales was planning to shoot defendant . Fearing for his life and the life of his family, defendant obtained a gun and went to th e area of the offense to talk to Morales. When defendant encountered Morales and as ked him " 'What's up?' " Morales started3 running towards defendant with his hand be hind his back. Defendant thought Morales "had something" so defendant pulled his gu n from his waistband an d started shooting. Defendant told the probation officer he di d not intend to shoot Morales but just to point the gun at him to show he was not " 'mes sing' " and did not want anyone to hurt his family. At the time of the offense he was under the influence of methamphetamine and alcohol; he was not in his right state of mi nd; and he "was stupid and did not mean to shoot" Morales. The nature of defendant's alleged offense permitted him to be charged as an adult in criminal court without a findi ng by a juvenile court that he was unfit to be dealt with in juvenile court. (Welf. & Inst. Code, § 707, subd. (d)(2); see Manduley v. Superior Court (2002) 27 Cal.4th 537, 549-550.) 1 Defendant was charged as an adult in criminal court with attempted murder (count 1) and assault w ith a semiautomatic firearm (count 2, Pen. Code, 2 § 245, subd. (b)), and with three enha ncement allegations: (1) committing the offense for the benefit of a gang (§ 186.22, subd. (b)(1)); (2) personal use of a firearm (§ 12022.5, subds. (a), (d)); and (3) personal infliction of great bodily injury (§ 12022.7, subd. (a)). On July 28, 2011, defendant pled guilty to assault w ith a semiautomatic firearm and admitted the three enhancements. He also admitted that he personally used a firearm

1 Charges may be filed directly in criminal court if the minor is at least 14 years old and the alleged offense involves a statutor ily-specified circumstance, including personal use of a firearm. (Welf. & Inst . Code, § 707, subd. (d)(2)(B).)
2 Subsequent unspecified statutory references are to the Penal Code.4 within the meaning of the Welfare and Ins titutions Code provision permitting him to be charged as an adult. (Welf. & Inst. C ode, § 707, subd. (d)(2)(B); see fn. 1, ante .) The prosecution agreed to dismiss the attempted murder charge a nd to a sentence between 10 to 20 years. At sentencing, the prosecution (with the probation officer's concurrence) proposed a 20-year sentence, whereas defense counsel re quested a 10-year sentence. In support of their positions, the parties elaborated at length about their differing views on the mitigating and aggravating fact ors operative during the offense. After listening to the parties' arguments and statem ents from defendant's family members, the court imposed a 16-year sentence, consisting of: (1) the lo wer three-year term for assault with a semiautomatic firearm; (2) the lower th ree-year term for the personal gun use enhancement; and (3) the 10-yea r term for the gang enhancement. The court explained that it selected the lower three-year te rms for the assault offense and gun use enhancement based on defendant's youthful age, lack of signi ficant criminal history, and early acceptance of responsibility . It imposed the 10-year te rm for the gang enhancement based on defendant's personal use of a firear m, which made the offense a violent felony triggering the 10-year gang enhancement term. Finally, fo r the personal infliction of great bodily injury enhancemen t, the court exercised its disc retion under section 1385 to strike the punishment for this enhancement in th e interests of justice, reasoning that it had "adequate sentencing parameters" without add itional custody based on this enhancement.5 DISCUSSION
I. Punishment for Both Gang Enha ncement and Personal Firearm Use Defendant argues the trial court erred by imposing both the 10-year gang benefit enhancement and the personal use of a fir earm enhancement because both enhancements were based on his personal use of a firearm . As we shall explain, there was no reversible error because the 10-year gang enhancemen t term could properly be premised on defendant's personal infliction of great bodily injury without reliance on his personal gun

use. Section 654 generally provides that when an act or omission is punishable under different statutory provisions, the act or omission may be punished only once . 3 Specifically addressing punishment for enhanc ements based on gun use and great bodily injury, section 1170.1 , subdivisions (f) and (g), provides that a gun use enhancement may be imposed only once for a single offense, and, likewise, a great bodily injury enhancement may be imposed only once for the offense. However, section 1170.1, subdivisions (f) and (g), also provides that the imposition of a gun use enhancement does

3 Section 654 states in relevant part: "( a) An act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under more than one provision. . . ."6 not preclude the imposition of a great bodily injury enhancement for a single offense. 4 Based on the express terms of secti on 1170.1, subdivisi ons (f) and (g), in People v. Ahmed (2011) 53 Cal.4th 156, the court held the trial court di d not err in imposing both a gun use enhancement and a grea t bodily injury en hancement for the defendant's single act of firing a gun. ( Id. at pp. 159-160, 164, 168.) Further, the Ahmed court concluded that when a statute specifically permits impositi on of multiple enhancements, that specific statute prevails over the more general statut ory provision set forth in section 654 that prohibits double punishm ent for a single act. ( Ahmed, supra , at pp. 159-161, 163.) Ahmed explained: "[T]he personal use of a fir earm was an aspect of [the single act of shooting] that, the Legislatur e has determined, warrants add itional punishment; similarly, the infliction of great bodily injury is a differe nt aspect of that act that, the Legislature has determined, also warrants additional punishment." ( Id . at pp. 163-164.)

4 Section 1170.1 states in relevant part: "(f) When two or more enhancements ma y be imposed for being armed with or using a dangerous or deadly weapon or a fire arm in the commission of a single offense, only the greatest of those enhancements shal l be imposed for that offense. This subdivision shall not limit the imposition of a ny other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury. "(g) When two or more enhancements may be imposed for the infliction of great bodily injury on the same vi ctim in the commission of a single offense, only the greatest of those enhancements shall be imposed for th at offense. This subdivision shall not limit the imposition of any other enhancements ap plicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm." We note that section 1170.1's statemen t that only the greatest enhancement "shall be imposed" in effect means imposed and executed given that the appropriate procedure is for the court to impose th e sentence for both enhancements, and then stay execution of the shorter sentence. ( People v. Vega (2013) 214 Cal.App.4th 1387, 1395-1396; see People v. Gonzalez (2008) 43 Cal.4th 1118, 11 22-1123, 1125- 1126, 1130.)7 The gang enhancement st atute sets forth varying levels of imprisonment, depending on the nature of the felony of whic h the defendant is convicted. At the lowest level, the gang enhancement statute provides for a two-, three-, or four-year term. (§ 186.22, subd. (b)(1)(A).) Th e term is elevated to five years for statutorily-defined serious felonies (§ 186.22, subd. (b)(1)(B)), and it is elevated to 10 years for statutorilydefined violent felonies (§ 186.22, subd. (b)(1)(C)). The statutor ily-defined violent felonies that support the 10-year term include felonies for which pe rsonal use of a firearm has been charged and proven, or for which personal infliction of great bodily injury has been charged and proven. (§ 667.5, subd. (c)(8).) Based on section 1170.1, subdivisi on (f)'s limitation on multiple gun use enhancements, the trial court erred by imposi ng punishment pursuant to two statutes: (1) the personal firearm use stat ute (§ 12022.5, subd. (a)); and (2) the 10-year gang enhancement statute premised on personal firearm use . ( People v. Rodriguez (2009) 47 Cal.4th 501, 504-505, 508-50 9.) However, defendant wa s also charged with an enhancement for personal infliction of great bodily injury , and he admitted this allegation in his guilty plea. Thus, use of the 10-y ear gang enhancement term was additionally available premised on the great bodily injury as pect of defendant's offense. Further, the great bodily injury aspect was available to elevate the gang enhancement to the 10-year term because the court did not impose punishment based on the great bodily injury enhancement under section 12022.7, but rather struck this punishment in the furtherance of justice under section 1385. ( People v. Vega, supra , 214 Cal.App.4th at p. 1395 [court did not err in imposing punish ment based on both firearm use enhancement and 10-year8 gang enhancement because subs tantive offense was violent fe lony due to both gun use and infliction of great bodily injury, and se ntence on great bodily injury enhancement was stayed].) Given the availability of the great bodily injury aspect to support application of the 10-year gang enha ncement term, there is no reasona ble probability the outcome would have been different absent the court's erroneous reliance on the firearm use for the 10- year gang enhancement term. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.) The record shows the trial cour t selected the 16-year total sentence as the appropriate term of custody that defendant should receive for his offense. We have no doubt that if the court had realized it could not rely on defendant's firearm use for both the gang enhancement and the firearm us e enhancement, it would have premised imposition of the 10-year gang enhancement term on the great bodily injury aspect of th e offense so as to permit imposition of punishment for the section 12022.5 firearm use enhancement. 5
The court's erroneous reference to the firearm use for the 10-year gang enhancement term was harmless. Becaus e the 10-year gang enhancement term was properly applicable due to the great bodily inju ry aspect of the crime, the court did not err in imposing punishment based on both the 10 -year gang enhancement statute and the firearm use enhancement statute.

5 Indeed, the probation report and the pr osecutor's sentencing statement cite the great bodily injury enhancement as establishi ng the offense as a viol ent felony for the 10- year gang enhancement term, and suggest impos ing and executing this term while staying the sentence on the great bodily injury enhancement.9 II. Placement of Case in Adu lt Court Based on Firearm Use and Enhancement of Senten ce Based on Firearm Use Defendant argues the trial court violated section 654 and due process/fundamental fairness by using the fact of his personal fir earm use to both (1) try him as an adult and (2) enhance his sentence. Defendant conte nds that placing his case in adult court constitutes punishment within the meaning of sec tion 654's proscripti on against double punishment because juvenile court focuse s on rehabilitation whereas criminal court focuses on punishment. We agree with defendant that adjudicatin g a minor's offense in criminal, rather than juvenile, court can readily subject the minor to harsher punishment. (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810-811; Marcus W. v. Superior Court (2002) 98 Cal.App.4th 36, 41.) Nevert heless, we are not persuaded by defendant's assertion that the placement of his case in adult court constitutes punishment under section 654

. Section 654's prohibition against double pu nishment is designed to ensure that a defendant's punishment is commensura te with his or her culpability. ( People v. Sanders (2012) 55 Cal.4th 731, 742.) Thus, generally a defendant should not be punished twice for a single physical act ( People v. Jones (2012) 54 Cal.4th 3 50, 358), nor should a defendant be punished twice for a course of conduct when the de fendant entertained a single criminal objective ( People v. Latimer (1993) 5 Cal.4th 1203, 1208). The decision to try a minor as an adult constitutes a jurisdictional selection that

exposes the minor to potentially elevated punishment; howe ver, it does not actually adjudicate or impose any punishment. For example, here, the decision to try defendant as10 an adult because he used a firearm did not determine his punishment; rather, his punishment was resolved via the plea bargai ning process and then by the trial court's selection of a sentence within the agreed-upo n range. Defendant was not punished for his firearm use when his case was brought in adult court; rather, he was exposed to a potentially longer punishment for the firearm use due to the adult court placement, and then punishment was actually imposed for his firearm use at the time of sentencing in adult court. The mere placement of his cas e in adult court did not itself constitute a punishment; indeed, de fendant could have been acquitte d by an adult court jury and received no punishment at all. Because the placement of a minor's case in adult court constitutes a jurisdictional election that does not determine or impose puni shment, section 654 is not operative. For the same reason, we reject defendant's conten tion that he was punished for his firearm use in a fundamentally unfair manner that violated due process.
DISPOSITION The judgment is affirmed.

HALLER, J. WE CONCUR:

M C CONNELL, P. J.

HUFFMAN, J.