People v. Tameka C.
People v. Tameka C.
Opinion of the Court
Opinion
When a defendant commits an assault with a firearm upon an intended victim, and with the same shot injures an unintended victim, thereby committing another assault, may the sentence for each assault be enhanced by a separate firearm-use enhancement? We conclude the sentence may be so enhanced.
I
On the evening of March 1, 1994, an altercation broke out between defendant Tameka C. and Eddie Stansberry. Stansberry struck defendant in the face. Defendant left the scene and returned shortly thereafter with a
In a juvenile wardship proceeding, the juvenile court dismissed allegations that defendant had attempted to murder Stansberry and the three police officers involved in the fracas. The court found true the allegations that defendant committed an assault with a firearm upon each of the three officers in violation of Penal Code section 245, subdivision (d)(1).
The court committed defendant to the California Youth Authority, calculating that her maximum period of confinement would be for a period of 17 years and eight months, comprised of the following: an eight-year base term
On appeal, in addition to claims not raised here, defendant contended that the juvenile court erred in committing her to the California Youth Authority for a maximum term that included a firearm-use enhancement for the assault on Michael K. The majority opinion of the Court of Appeal rejected this claim. One justice filed a concurring and dissenting opinion, concluding that the firearm-use enhancement may not be imposed in connection with the term for the assault on Michael K. We granted defendant’s petition for review.
II
At the time these offenses were committed, section 12022.5, subdivision (a), provided in relevant part that “any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in. the state prison of three, four, or five years . . . .” (Stats. 1993, ch. 611, § 31.5, p. 3581.)
This court has held that multiple firearm-use enhancements may be imposed pursuant to section 12022.5, subdivision (a), when the defendant uses a firearm in a single, indivisible transaction that results in injury to multiple victims. (People v. King (1993) 5 Cal.4th 59, 79 [19 Cal.Rptr.2d 233, 851 P.2d 27] (King).) In reaching this decision in King, we overruled this court’s earlier ruling in In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23] (Culbreth), a case that held that only one enhancement could be imposed pursuant to section 12022.5 when “the charged offenses are incident to one objective and effectively comprise an indivisible transaction.” (17 Cal.3d at p. 333.) In the Culbreth case, we concluded that the intent of
In Culbreth, the defendant used a rifle to kill his wife, his mother-in-law, and his brother-in-law in rapid succession. We considered whether the sentence for each of two counts of second degree murder could be enhanced pursuant to section 12022.5,
We pointed to similar conclusions reached in Court of Appeal decisions limiting firearm-use enhancements to one per discrete occasion, and announced: “It is clear that the term ‘uses’ was deliberately employed by the Legislature when it adopted section 12022.5. To ‘use’ means, among other things, ‘ “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” ’ [Citation.] The ‘end or process’ here was the commission of a single frenetic act of violence which, unfortunately, resulted in multiple victims.” (Culbreth, supra, 17 Cal.3d at p. 334.) In specifically rejecting the People’s theory that “no consideration of the facts is necessary; a body count of victims is sufficient to establish the number of separate transactions,” we stated that “[t]his simplistic formula is untenable; an analysis of the events is essential to ascertain the apparent intent and objective of the defendant.” (Id. at p. 335.) We concluded: “Such an analysis here clearly indicates the homicides—the two second degree murders and the manslaughter—occurred in a matter of seconds, all part of a single melee. There was but one occasion, one intent, one objective, one indivisible transaction. Therefore section 12022.5 may be applied only once.” (Ibid.)
We also observed that in the Culbreth case, the defendant clearly “used” a firearm each time he shot a victim—noting in passing, however, that the victims were not killed with a single bullet. (King, supra, 5 Cal.4th at pp. 77, 79.) We also rejected Culbreth’s deterrence rationale, expressing a “doubt that the Legislature intended either deterrence or punishment to cease with the first victim. We think it far more likely, and consistent with the actual statutory language, that the Legislature intended to deter (and undoubtedly to punish) firearm use against multiple victims more strongly than firearm use against a single victim.” (5 Cal.4th at p. 78.)
As we explained in King, nothing in the language of section 12022.5, subdivision (a), limits the sentencing court to one enhancement per “occasion” of firearm use. As respondent points out, the sentencing court is not
Under the King rationale, a robber who enters a convenience store and obtains the valuables of seven patrons with a single display of a firearm has committed seven robberies, and each felony is subject to enhancement for use of a firearm. Keeping in mind both the effect on the victims and the culpability of the defendant, we see no distinction between this situation and one in which a defendant commits multiple assaults with a single shot from a firearm.
The language of section 12022.5, subdivision (a), and the intent of the Legislature in enacting this provision support the conclusion that an enhancement for each assault is appropriate in the present case. The intent of the enhancement provision is to “ ‘deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime’ ” (People v. Bland (1995) 10 Cal.4th 991, 996 [43 Cal.Rptr.2d 77, 898 P.2d 391]), and to “ ‘deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.’ ” (People v. Fierro (1991) 1 Cal.4th 173, 225 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) As one Court of Appeal has put it: “In other words, the term ‘use,’ as employed in this statute [section 12022.5] should be broadly construed, consistent with common usage, to check the magnified risk of serious injury which accompanies any deployment of a gun in a criminal endeavor.” (People v. Granado (1996) 49 Cal.App.4th 317, 322 [56 Cal.Rptr.2d 636].) It is clear that a person who engages in an urban gun battle is more culpable than one who fires a weapon at an isolated individual. The risk of injury to bystanders clearly is a risk arising from even one firing of the weapon. The more culpable and dangerous the behavior, the greater the need exists for effective deterrence. An increased sentence measured by the risk of harm to multiple victims reflects a rational effort to deter such reprehensible behavior.
Defendant hardly can claim that she did not “use” a firearm in her assault upon Michael K. Relying upon the common meaning of the term “use,” we have declared that “ ‘[u]se’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’
Employing these definitions, to the extent that defendant committed an assault upon Michael K. with a firearm within the meaning of section 245, subdivision (a)(2)—a substantive charge that defendant does not contest—we conclude that defendant made the firearm “instrumental” in the assault, or “applied” the firearm to advantage, in connection with the assault upon Michael K. Further, the use of the firearm aided in the completion of an element of the assault against Michael K.—the attempted (and indeed completed) battery against him. (See People v. Colantuono (1994) 7 Cal.4th 206, 214-217 [26 Cal.Rptr.2d 908, 865 P.2d 704].)
We also observe that section 1203.06, subdivision (b)(3), in language that has been interpreted as applicable in defining the term “use” in section 12022.5, provides that “use” means “to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.” (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1319 [45 Cal.Rptr.2d 602]; CALJIC No. 17.19; see also People v. Hamilton (1998) 61 Cal.App.4th 149, 155 [71 Cal.Rptr.2d 359].) Defendant does not contest that she fired her weapon intentionally, and under the quoted definition nothing more is required. Under any reasonable definition of the word “use,” if we ask what instrumentality defendant employed in committing the assault upon Michael K., it is obvious that she used something, and that the weapon used was a firearm and not any other object. The circumstance that on the same occasion, and indeed in the same act, she used the firearm when she committed the assault against the police officers does not detract from the reality that she also “used” the firearm in the assault upon Michael K. within the meaning of section 12022.5, subdivision (a).
As for the statutory phrase “in the commission of,” nothing indicates that the Legislature intended to limit application of the statute to crimes in which the defendant possessed the intent to injure a particular victim. We have interpreted identical language in section 12022, subdivision (a), providing for a sentence enhancement for being armed “in the commission of’ a felony, to require only that “the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’ to that offense.” (People v. Bland, supra, 10 Cal.4th at p. 1002, italics in original.) Similarly, we have
Defendant also contends that because her purpose was not to injure or assault Michael K. when she fired the weapon, she did not “use” the firearm in connection with her assault on this victim. Contending that there is no statutory definition of the term “use,” she urges that the deterrent objective of the statute is not served by imposing multiple enhancements when a single shot results in offenses being committed against more than one victim and the presence of one of the victims is unknown to the perpetrator. The dissenting justice in the Court of Appeal also contended that defendant’s purpose—or lack of purpose—should be considered in determining whether to impose the use enhancement, as should the circumstance that only a single shot was fired.
Defendant’s contention that the use enhancement applies to an assault with a firearm count only if the defendant specifically intended to assault or injure the particular victim finds no support in the words of the statute and is inconsistent with the nature of the underlying crime and with the purpose of the enhancement statute. The underlying substantive offense of assault with a firearm does not require a specific intent to injure a particular victim. As we have said in discussing the mens rea of assault with a deadly weapon, “[although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.” (People v. Colantuono, supra, 7 Cal.4th at p. 214.) We observed that because the law seeks to prevent the wrongful application of physical force upon the victim “irrespective of any actual purpose to cause it,” the mens rea element of assault is established by proof of general criminal intent. (Id. at p. 217.) We emphasized that “[t]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm.” (Id. at p. 218.)
It would be anomalous to suppose that the Legislature, in contrast, did intend to impose such a specific intent requirement as to the firearm-use enhancement, particularly when enhancements do not constitute separate
As noted, defendant claims no possibility of deterring the use of a firearm exists when the victim is unintended. We reject this claim. By such reasoning, the substantive offense against Michael K. also should not be punished—although defendant does not challenge the finding or commitment for that offense, and the law is contrary to her contention. As the trial court observed, to fire a weapon in an urban area and thereby injure others is reprehensible risk-taking behavior that effectively may be deterred by the firearm-use enhancement, even when the perpetrator does not specifically intend to injure one of his or her victims or intends only to assault a person other than the victim. Further, we have recognized that the firearm-use enhancement may be effective in deterring a defendant from making any use of a gun in his or her criminal enterprises (People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]), and this deterrent effect will operate irrespective of the defendant’s intent as to a particular victim.
In essence, defendant, urging that a single shot is a single occasion of firearm use and should be subject only once to enhanced punishment, would have us return to the discredited “single occasion” rule of Culbreth. We decline to do so. The Legislature has expressed its purpose of deterring unlawful firearm use and avoiding the ensuing injury to the public, and we
III
The judgment of the Court of Appeal is affirmed.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
All statutory references are to the Penal Code, unless otherwise indicated.
At the time of the offenses, section 12022.5, subdivision (a), established a term of three, four, or five years for the use enhancement. (See Stats. 1993, ch. 611, § 31.5, p. 3581.)
Pursuant to section 1170.1, subdivision (a), the 16-month terms represented one-third the midterm for the firearm-use enhancements.
The remaining voluntary manslaughter count was not subject to enhancement pursuant to section 12022.5 at that time.
defendant’s contention, that to impose multiple firearm-use enhancements in the present case undermines the provisions of the determinate sentencing law calling, for example, for an upper term or consecutive sentence in the case of multiple victims, ignores the reality that the enhancement statutes authorize the imposition of multiple enhancements in addition to the punishment imposed for the underlying offense, whether or not the factual basis for the enhancement may be used in calculating a base term for the substantive offense. In the case of the firearm-use enhancement, for example, it is clear that the Legislature intended to impose additional punishment even though the firearm use is an element of the underlying offense of assault as defined by section 245. (See § 12022.5, subd. (d); People v. Johnson (1996) 51 Cal.App.4th 1329 [59 Cal.Rptr.2d 798].)
Concurring Opinion
I concur under compulsion of People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27].
Defendant does not dispute that she committed the felony of assault against the police officer by shooting a gun; she thus “personally use[d] a firearm in the commission ... of [that] felony,” within the meaning of Penal Code section 12022.5. She also concedes that she committed the felony of assault against Michael K. when the same bullet shattered a window, causing Michael K. eye injuries from broken glass. By definition, she thus “personally use[d] a firearm in the commission ... of [that] felony” (ibid.) as well, regardless of her subjective purpose; accordingly, a separate enhancement with regard to that offense was properly added to her sentence.
Reference
- Full Case Name
- In Re TAMEKA C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TAMEKA C., Defendant and Appellant
- Cited By
- 55 cases
- Status
- Published