Error and/or relief
The court was not statutorily authorized to impose a section 12022.53(c) enhancement for a section 26100 offense (discharging a firearm from a motor vehicle). We remand the case to the trial court for resentencing.
First Holding:
We review the trial court’s sentencing decisions for abuse of discretion. In deciding whether the trial court has abused its discretion, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.
Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847
People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746
Second Holding:
Section 12022.53, in relevant part, sets forth escalating additional and consecutive penalties, beyond that imposed for a substantive crime, for the use of a firearm in the commission of specified felonies. Section 12022.53(c) mandates the imposition of a 20-year term for the personal and intentional discharge of a firearm in the commission of one of the section 12022.53(a) felonies, which does not include section 26100.
Imposition of that enhancement was an abuse of discretion, which resulted in an unauthorized sentence.
Authority:
PEN 12022.53
Third Holding:
The People suggest this court can modify the sentence and impose a lesser included section 12022.5(a) enhancement of 10 years. But section 12022.5(a) provides that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. Thus, we remand the case to the trial court for resentencing.
Authority:
People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2
People v. Tirado (2022) 12 Cal.5th 688, 700, fn. 12