Error and/or relief
The court erroneously imposed a 10-year upper term firearm enhancement, although the jury was not asked to consider, and did not render a finding, that defendant personally used a firearm in the commission of the murder. The 10-year firearm enhancement is unauthorized. We therefore strike the enhancement and affirm the judgment as modified.
Holding:
The personal firearm use allegation under section 12022.5(a), was pled only as to the codefendant. No firearm allegation was alleged as to defendant under any statute. Nevertheless, at defendant’s sentencing hearing, the trial court imposed a 10-year upper term enhancement for personal firearm use under section 12022.5. No objection was raised in the trial court to the imposition of this enhancement, and no contention was raised on appeal regarding the sentencing error. The 10-year firearm use enhancement is unauthorized and must be stricken.
(Gary note: There was no discussion of effective assistance of counsel in the opinion. It relied solely on the unauthorized nature of the sentence. But I have “tagged” this as ineffective assistance of counsel. How could counsel have let his or her client receive a 10-year enhancement that was not charged against the client? Yes, it was against the co-defendant, but I’m not sure it takes a Monday morning quarterback to suggest that one’s client should not be sentenced on a different defendant’s charges. If the co-defendant had been charged with murder, and my client with only burglary, I think I’d notice if my client was sentenced to a life term for my co-defendant’s murder conviction. Just sayin’, I guess.)
Authority:
People v. Scott (1994) 9 Cal.4th 331, 354