Weapons, GBI And Other Conduct Enhancements [§EA-27]
EA IV(A) General Premises [§EA-28]: Many sentence enhancements look and act just like substantive offenses. They refer to the defendant’s conduct during the current offense and go to the jury during the same proceeding as the principal counts. Consequently, counsel should look for the same types of trial issues which commonly provide grounds for challenging the convictions on the substantive counts–including jury instructions on the elements of the enhancement, instructions on potential lesser included charges, the sufficiency of the proof of each element, and the admissibility of evidence. (Also, as noted at the outset, appellate counsel should be particularly alert to the possibility that an enhancement may involve “hidden elements,” which escaped the notice of the trial court and counsel.) The following are a few examples of some issues concerning the more commonly litigated “current conduct” enhancements. (This is by no means an exhaustive summary of the issues surrounding these enhancements.)
EA IV(B) Arming And Weapon Use [§EA-29].
EA IV(B)(1) Firearm Use [§EA-30]: PC 12022.5’s broad definition of personal firearm use (PC 12022.5) embraces many situations in which the defendant does not actually fire the gun. For instance, where the defendant wields a gun during the crime (or a set of contemporaneous crimes, like robberies of multiple victims), it’s sufficient to sustain a use finding even if it was the accomplice who fired the shot causing injury of that victim. (See People v. Hankey(89) 215 CA3d 510, 512-13 [263 CR 615]; In re Londale H. (92) 5 CA4th 1464, 1467-68 [7 CR2d 501]; see also People v. Berry (93) 17 CA4th 332 [21 CR2d 299].)
But lesser-included offense principles are at least partially applicable to enhancements. Most notably, “arming” (PC 12022(a)) is a lesser-included charge of gun use under PC 12022.5; similarly, in sex offense cases, “arming” under PC 12022.3(b) is necessarily included within “use” under PC 12022.3(a). (People v. Turner (83) 145 CA3d 658, 683-84 [193 CR 614]; cf. People v. Manning (92) 5 CA4th 88, 90-91 [6 CR2d 671] [questioning Turner but not specifically disagreeing with its holding on jury instructions].)
The recognition that an arming enhancement is a type of lesser-included finding provides a vehicle for an appellate court to reduce the enhancement to a lesser one where there’s insufficient evidence to support finding under charged enhancement. (See e.g., People v. Allen (85) 165 CA3d 616, 626-27 [211 CR 837]; People v. Hays (83) 147 CA3d 534, 543-51 [195 CR2d 252].) Reduction is also a discretionary option for other errors (e.g., incomplete instructions on elements) going to the degree or type of enhancement. (E.g., People v. Wandick (91) 227 CA3d 918, 925-27 [278 CR 274].)
Most importantly, Turner also supports application of traditional sua sponte rules on lesser included charges to enhancements. Hence, even if there is no separate PC 12022(a) allegation, a trial court should instruct sua sponte on PC 12022(a) as a lesser alternative to PC 12022.5, where there’s equivocal evidence of defendant’s personal use. (E.g., two perpetrator cases where there’s some conflict or uncertainty re which person wielded gun; or situations in which the defendant’s own conduct with gun is susceptible to different interpretations, such as “passive display” cases; e.g., People v. Fletcher UNPUBLISHED (A055299), reducing use enhancement to arming enhancement due to failure to instruct sua sponte on arming as lesser allegation.) Ideally, defense counsel should also request instructions which pinpoint the application of the reasonable doubt rule to the choice between greater and lesser enhancements — i.e., the jury should be advised that it should resolve in favor of the lesser allegation (arming) any reasonable doubt in the characterization of the defendant’s conduct as arming or personal use.
The recent expansions of weapons-related enhancements provide still more potential applications of lesser-included principles. The traditional enhancement for personal firearm use (PC 12022.5(a)) is itself a lesser included allegation of some of the newer enhancements for drive-by shootings with GBI or death (PC 12022.55), shooting at a vehicle and causing GBI or death (PC 12022.5(b)(1)), and use of an assault weapon (PC 12022.5(b)(2)).
The Supreme Court’s recent decision in People v. King (93) 5 C4th 59, 75-79 [19 CR2d 233], overruling In re Culbreth (76) 17 C3d 330 [130 CR 719], will make it even more difficult than before to attack multiple “use” enhancements on sentencing grounds — i.e., to seek “stays” or partial stays of enhancements. Number of weapon “uses” in multiple count situations (especially multiple sex-offenses). Consequently, it is more important than ever to challenge such multiple allegations during the trial itself. FORECITE has proposed an instruction which clarifies the jury’s obligation to consider use allegations on a count-by-count basis. (See FORECITE F 17.02c.) Similarly, appellate counsel should consider approaching the same subject as a matter of sufficiency of the evidence. (See People v. Funtanilla (91) 1 CA4th 326, 330-33 [1 CR2d 875].) Here too, even where there may be sufficient evidence to support each finding, consider the possibility of framing the argument as a failure to instruct on a lesser (PC 12022(a) or PC 12022.3(b)) where the evidence of “use” is equivocal as to some counts.
(See LIO II(A)(4) [lesser enhancements must be requested].)
EA IV(B)(2) Arming [§EA-31]: Similarly, where there was formerly one principal arming enhancement (PC 12022(a)), today there are several. Counsel should be particularly attentive to the additional elements of new arming enhancements for specified drug offenses (PC 12022(c) & PC 12022(d)). These new subdivisions of the arming statute do not simply increase the enhancement term where the underlying offense is for drugs. PC 12022(c) requirespersonal arming, while 12022(a) allows vicarious arming. PC 12022(d) provides for vicarious arming in drug cases, but requires knowledge of the other person’s arming (again in contrast to PC 12022(a)).
Some 12022(c) and (d) enhancements are frequently vulnerable on appeal since the instructions didn’t include the additional elements. (E.g., People v. Wandick (91) 227 CA3d 918, 927-28 [278 CR 274]; People v. Smith (92) 9 CA4th 196, 206-07 [11 CR2d 645].) Moreover, even if the instructions on (c) or (d) adequately state the elements, it is important to remember that PC 12022(a)(1) is still a lesser arming enhancement. It applies in all cases except those covered by PC 12022(c) or PC 12022(d). Hence, it can apply in a drug case where the defendant had no knowledge that his accomplice was armed. Under Turner, this should require sua sponte instructions on PC 12022(a)(1) any time the evidence is reasonably susceptible to an interpretation that the defendant was not aware of his confederate’s arming. (This is a not uncommon situation in drug cases where the arming allegation may be based on the availability of the gun to the confederate rather than his actually carrying it.)
The meaning of “armed” with a firearm under the various subdivisions under PC 12022 is discussed at FORECITE F 17.15a.
EA IV(C) Great Bodily Injury Enhancements (GBI’s) [§EA-32].
ALERT: As of 1/1/96 PC 12022.7 was amended to delete the requirement of intent to inflict injury. CJ 17.20 (6th Ed.) was modified to delete this requirement. However, because this change reduces the prosecution’s burden of proof it may not be applied retroactively to crimes occurring prior to January 1, 1996. (See In re Baert (88) 205 CA3d 514, 517-518 [252 CR 418].) Therefore, the intent element should be included for crimes committed prior to 1/1/96. See also FORECITE F 17.20 n6 [constitutional challenge to elimination of specific intent for GBI].
The various GBI enhancements have produced a potpourri of intent issues. Notwithstanding the earlier Bass opinion (People v. Bass (83) 147 CA3d 448, 450-54, 456-57 [195 CR 153]), the prevailing view now is that PC 12022.7 (the principal GBI enhancement) requires specific intent to inflict GBI (rather than just the intent to do the act). (People v. Simpson (87) 192 CA3d 1360, 1365-68 [237 CR 910]; People v. Phillips (89) 208 CA3d 1120, 1123-25 [367 CR 654].)
Consequently, any other GBI statute which refers to GBI “as provided in 12022.7” should also be construed to require specific intent. (People v. Santos (90) 222 CA3d 723, 741-45 [271 CR 811] [re PC 667.7(a), habitual offender enhancement]; see also In re Sergio R. (91) 228 CA3d 588, 599-601 [279 CR 149] [same re PC 12022.55, drive-by shooting enhancement].) CALJIC initially revised its CJ 12022.8 instruction (GBI during sex offense) on the assumption thatSantos applied. But notwithstanding Santos, two recent cases have held that PC 12022.8 does not require specific intent, and the most recent CALJIC edition again deletes the specific intent element. (Cf. People v. Wallace (93) 14 CA4th 651, 663-65 [17 CR2d 721]; People v. Martinez (93) 13 CA4th 23, 28-29 [16 CR2d 556].) As discussed in FORECITE F 17.20.1 n2, Wallace and Martinez are wrong, and counsel should continue to seek instructions on specific intent.
The California Supreme Court has recently relaxed the definition of GBI by overruling its often-criticized decision in People v. Caudillo (78) 21 C3d 562, 587-89 [146 CR 859]. (People v. Escobar (92) 3 C4th 740, 750-52 [12 CR2d 586]. As discussed in FORECITE F 17.21 n1, Escobar effectively abandons the requirement that the injury fall into one of the specific categories listed in the Caudillo opinion. Nonetheless, although the Supreme Court was not as clear on this point as in its later opinion in People v. King (93) 5 C4th 59, 79-81 [19 CR2d 233] (overruling Culbreth), ex post facto principles require that Escobar‘s expansion of the GBI enhancement be applied prospectively only.
Trial and appellate counsel should still be on guard for any instruction that a particular type of injury equals GBI as a matter of law. Such an instruction constitutes Sandstrom error or worse by effectively removing from the jury the question of whether a certain injury constitutes GBI. (See People v. Nava (89) 207 CA3d 1490, 1494 [255 CR 903] [erroneous instruction that any bone fracture constituted GBI as a matter of law]; People v. Beltran (89) 210 CA3d 1295, 1301-06 [258 CR 884].)
[RESEARCH NOTES: See also “With The Intent to Inflict Such Injury: The Courts and the Legislature Create Confusion in California Penal Code Section 12022.7,” 28 San Diego LR 963, and “Regarding Troy: Will The Real Abusers Please Stand Up,” 24 UWLA LR 379.]
EA IV(D) Drug Quantity Enhancements And Probation Ineligibility Statutes [§EA-33]: The special statutes enacted in recent years to get tough on drug offenders are prime examples of the phenomenon of “hidden elements.” The enhancement statutes do not closely track the substantive drug offenses’ laundry lists of ways of committing the crimes. As described below, some drug enhancements can only be applied where the underlying drug offenses were committed in certain ways.
EA IV(D)(1) Quantity Enhancements (HS 11370.4) [§EA-34]: PC 11370.4 establishes weight-based enhancements ranging from 3 to 15 years. Under the terms of the statute, where the underlying conviction is for conspiracyto commit a narcotics offense, the quantity enhancement requires a specific jury determination “that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.” (See People v. Garcia (92) 3 CA4th 582 [4 CR2d 539].)
The statute uses the term “conspiracy enhancements.” But it is unclear whether this enhancement applies where the underlying conviction was for a substantive drug offense (HS 11351, HS 11351.5, HS 11352), but (under the jury instructions) the conviction may have rested solely on vicarious liability via a conspiracy theory.
EA IV(D)(2) Quantity-Based Limitations On Probation Eligibility [§EA-35]: Probation preclusion for 14.25 or more grams of heroin (PC 1203.07(a)(2)). This probation ineligibility statute only applies to a HS 11352 conviction for selling or offering to sell. (See People v. Barraza (88) 197 CA3d 613 [243 CR 98] [ineligibility finding reversed where underlying verdict and instructions on HS 11352 were based on “sold or furnished”].)
Probation restriction (to “unusual cases”) based on 28.5 or more grams of cocaine (PC 1203.073(b)(1)).) This statute also only applies to selling or offering to sell. Hence the presumption against probation eligibility couldn’t be applied where the jury found “sale or transport” on the underlying HS 11352 count. (People v. Bartlett (90) 226 CA3d 244, 248-49, 252 [276 CR2d 460].)
EA IV(E) Gang Enhancements (PC 186.22(b)) [§EA-36]: See FORECITE F 6.50 et seq. and F 17.24 et seq.
EA IV(F) Jury Unanimity Issues [§EA-37]: It’s very clear that the jurors must reach a unanimous verdict as to the truth of an enhancement allegation. Of course, one of the most common instructional issues concerning substantive counts is failure to deliver CJ 17.01, the instruction requiring unanimous agreement as to the act constituting the offense. But the case law is muddled on the extent to which the case law surrounding CJ 17.01 also applies to enhancements.
Two cases have rejected CJ 17.01 arguments going to GBI enhancements and thus have declined to require jury unanimity as to the particular injury constituting GBI. (People v. Muniz (89) 213 CA3d 1508, 1517-19 [262 CR 743];People v. Robbins (89) 209 CA3d 261 [257 CR 60].)
However, the drunk driving multiple-victim enhancement (VC 23558 (former VC 23182)) does require jury unanimity as to which persons were injured. (People v. Gibson (91) 229 CA3d 284 [280 CR 52].) By the same token, the instructions should require jury unanimity on the “predicate offenses” of gang members for purposes of the gang-enhancement (PC 186.22(b)).
The lesson appears to be that jury unanimity issues will be addressed on an enhancement-by-enhancement case-by-case basis. In deciding whether to raise a unanimity-instruction issue, attorneys should proceed from the premise that the general principles on the situations which require the delivery of CJ 17.01 also apply to enhancements. By the same token, the recognized exceptions, such as “continuous conduct,” would also apply; this may partially explain (and provide a basis for distinguishing) Muniz and Robbins. In addition to the multiple-victim scenario of Gibson, it is easy to anticipate other types of enhancements which may pose tenable CJ 17.01 issues. For instance, CJ 17.01 is required as to an arming enhancement if there are two guns carried by different people or found at different locations and there is conflicting evidence as to the defendant’s connection to or knowledge of the different weapons. (E.g., People v. Shell UNPUBLISHED (A055632).) [A copy of the Shell brief is available to FORECITE subscribers. Ask for Opinion Bank # O-124.] The same should be true of a quantity enhancement in a case where there were two distinct caches of drugs.