Error and/or relief
It was improper for the court to impose an enhancement for great bodily injury under section 12022.7 in addition to the enhancement for use of firearm under section 12022.53(d). Further, the abstract of judgment reflects a $10,000 restitution fine that was not included in the oral pronouncement, and it must be corrected.
First Holding:
On count 1, the trial court imposed both a 3-year determinate term for great bodily injury under section 12022.7(a) and a 25-years-to-life indeterminate term for personally and intentionally discharging a firearm and proximately causing great bodily injury under section 12022.53(d). Because section 12022.53(d) requires a finding of great bodily injury, we see this as analogous to Gonzales, and order the enhancement under section 12022.7 stayed.
In Gonzales, the Supreme Court held that section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.
Authority:
PEN 12022.7
PEN 12022.53(d)
People v. Gonzalez (2008) 43 Cal.4th 1118, 1130
Second Holding:
The sentencing court imposed a restitution fine of $10,000 but suspended it pending a hearing on the defendant’s ability to pay. The abstract of judgment, however, indicates that the $10,000 restitution fine was imposed, and there is no indication that an ability to pay hearing occurred. We therefore exercise our authority to modify the abstract of judgment to reflect the oral pronouncement by striking the $10,000 restitution fine pursuant to section 1202.4(b).
Authority:
People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1473 [exercising authority to modify judgment, impose sentence, and stay execution of sentence]
People v. Felix (2009) 172 Cal.App.4th 1618, 1631 [correcting abstract to match oral pronouncement]