CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
LOUIE BRACAMONTE et al.,
(Los Angeles County
Super. Ct. No. KA047288)
ORDER DENYING REHEARING
AND MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
Defendants and Appellants.
The petitions for rehearing by appellants and respondent having been made,
read, and duly considered,
IT IS ORDERED that the petitions are denied.
IT IS FURTHER ORDERED that the opinion filed on February 27, 2003, is
modified as follows:
The text of footnote 5 on page 19 is deleted.
In its stead, the following text is inserted:
Respondent takes the position that the section 12022.5 firearm use
enhancement on counts 1 and 3 as to Medina cannot be stricken for the reasons:
(1) “the trial court was prohibited in [2000 and] 2001 from striking a personal
firearm use allegation under section 12022.5”; and (2) “[i]n 2002, a year after
appellants were sentenced in this case, the California Legislature amended section
12022.5 to include subdivision (c), which provides, ‘Notwithstanding Section 1385
or any other provision of law, the court shall not strike an allegation under this
section or a finding bringing a person within the provisions of this section.’ (Stats.
2002, ch. 126 (AB 2173), § 3.) This amendment was a declaration of existing law
as set forth in People v. Thomas (1992) 4 Cal.4th 206, in which the California
Supreme Court held that a trial court has no discretion to strike a firearm
enhancement imposed under section 12022.5. (Id. at pp. 208, 212-214.)”
Respondent’s position is incorrect. Section 12022.5 must be construed in
conjunction with section 12022.53 where, as here, personal firearm use under
section 12022.53 is also alleged.
The court strikes a section 12022.5 enhancement under subdivision (f) of
section 12022.53, which provides that: “An enhancement involving a firearm
specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to
an enhancement imposed pursuant to this section.” (Italics added.) Such directive
is mandatory. No discretion is involved. (See also People v. Jenkins (1980)
28 Cal.3d 494, 505; People v. Tanner (1979) 24 Cal.3d 514, 521.)
Respondent’s companion position is that the trial court properly imposed
and stayed the section 12022.5 enhancements, because “by staying the
enhancement, it preserved . . . Medina’s sentence in the event of a reversal on
another enhancement or count” and “safeguarded the section 12022.5 findings
properly made at trial.” Respondent urges that by staying the section 12022.5
enhancements, the court “did not add ‘additional’ prison terms” proscribed by
section 12022.53, which, as rephrased by respondent, “mandates that the greatest
enhancement be imposed and prohibits imposition of ‘additional term[s] of
imprisonment’ for the enhancement. (§ 12022.53, subd. (f).)”
This position is untenable in the face of the plain and clear language that a
section 12022.5 firearm use enhancement “shall not be imposed . . . in addition to
an enhancement imposed pursuant to . . . section [12022.53].” (§ 12022.53,
Moreover, such position is also based on the faulty premise that staying of
the section 12022.5 enhancement is necessary “in the event of a reversal on
another enhancement or count.” No such need arises. In the situation where the
reviewing court finds no enhancement under section 12022.53 could be imposed,
then the section 12022.5 finding would be revived by operation of law.
There is no change in the judgment.
VOGEL (C.S.), P.J.