P. v. Izaguirre

Filed 3/8/05 P. v. Izaguirre CA2/3
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY A. IZAGUIRRE,
Defendant and Appellant.
B169352
(Los Angeles County
Super. Ct. No. BA232697)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Bob S. Bowers, Jr., Judge. Modified and affirmed, with directions.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
_________________

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Johnny A. Izaguirre was convicted by jury of first degree murder in which he
personally discharged a firearm, causing death, with the special circumstance that the
murder was intentional and was perpetrated by the discharge of a firearm from a motor
vehicle. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 190.2, subd. (a)(21).)1 He
was also convicted of three counts of willful, deliberate and premeditated attempted
murder, in one count of which it was found that he personally discharged a firearm,
causing great bodily injury, and in the remaining counts of which it was found that he
personally discharged a firearm. (§§ 187, subd. (a)/664, 12022.53, subds. (d), (c).)2 He
was sentenced to life in prison without the possibility of parole with a firearm
enhancement of 25 years to life on the murder count, and to concurrent life terms, one
with a 25-year-to-life firearm enhancement and two with 20-year firearm enhancements,
for the attempted murders.
Izaguirre appeals, contending that (1) the drive-by shooting special circumstance
violates the Eighth and Fourteenth Amendments to the United States Constitution
because it requires nothing more than proving a drive-by shooting first degree murder;
(2) the imposition of the section 12022.53, subdivision (d) enhancement on the murder
count violates principles of merger and section 654; (3) the 12022.53, subdivision (d)
enhancement must be stricken because it is subsumed within the life without parole
sentence; (4) the rule precluding multiple convictions for included offenses requires the
striking of various additional enhancements found true by the jury; and (5) the abstract of
judgment must be corrected to reflect the trial court’s award of actual presentence
custody credits. We granted rehearing to consider the effect of People v. Seel (2004) 34
Cal.4th 535 (Seel) and its interpretation of Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) on the issues raised by appellant.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 As to each count, the jury found true additional allegations, which are set forth in
the Discussion section, post.

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FACTS
Appellant does not challenge the sufficiency of the evidence underlying his
convictions, and the facts may be briefly stated. In the early hours of June 1, 2002, as
four unarmed young men were leaving an after-prom party in East Los Angeles, three
vehicles approached them. Words were exchanged, and some of the occupants of the
cars threw gang signs. Appellant, who was seated in the front passenger seat of one of
the vehicles, urged the young men to come closer, and then fired several shots. Jose
Bernal died as the result of a gunshot wound to the chest. Lionell Rivera sustained
gunshot wounds to the arm and upper torso. Jose Chavez was hit in the arm, and a bullet
grazed his mouth. Eric Garcia was not hit. Appellant was identified as the shooter by
eyewitnesses, including two of the surviving victims and individuals who had been in the
cars.
DISCUSSION
I. The drive-by special circumstance is not constitutionally infirm.
The jury was instructed that appellant could be convicted of first degree murder
either on the theory that the killing was deliberate and premeditated, or on the theory that
it was a drive-by murder. (§ 189 [murder is of the first degree if, inter alia, it is a willful,
deliberate and premeditated killing or if it is “perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the vehicle with
the intent to inflict death”].) After finding appellant guilty of first degree murder,3 the
jury found true the special circumstance that the murder was “intentional and perpetrated
by means of discharging a firearm from a motor vehicle, intentionally at another person
or persons outside the vehicle with the intent to inflict death.” (§ 190.2, subd. (a)(21).)
Appellant contends that the drive-by special circumstance set forth in
section 190.2, subdivision (a)(21) violates the Eighth and Fourteenth Amendments
because it fails to provide a meaningful basis for distinguishing between individuals who
3 There is no requirement that the jury unanimously agree on the theory underlying
a conviction of first degree murder. (People v. Majors (1998) 18 Cal.4th 385, 408.)

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deserve special circumstance punishment and those who do not, since proof of the drive-
by special circumstance requires nothing more than proof of a drive-by first degree
murder. This contention must fail.
We need not address whether, as a person sentenced to life without the possibility
of parole and not to a sentence of death, appellant has standing to raise this Eighth
Amendment challenge. As appellant acknowledges, his contention was rejected on the
merits by this court in People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez). In
Rodriguez, we relied on the United States Supreme Court’s decision in Lowenfield v.
Phelps (1988) 484 U.S. 231, as well as the California Supreme Court’s decision in
People v. Edelbacher (1989) 47 Cal.3d 983, 1023, footnote 12, to hold that the drive-by
murder special circumstance is not constitutionally infirm on the ground that it duplicates
the elements of drive-by first degree murder. (Rodriguez, supra, at p. 164; see also
People v. Marshall (1990) 50 Cal.3d 907, 945-946.) Appellant challenges our reliance
upon Lowenfield v. Phelps to support our conclusion in Rodriguez. We believe that
Rodriguez was correctly decided and decline to revisit the issue.
II. Imposition of the section 12022.53, subdivision (d) enhancement on the murder
count does not violate section 12022.53, subdivision (j).
Appellant was sentenced to life without parole for the special circumstance murder
of Bernal in count 1, and the trial court imposed a 25-year-to-life firearm enhancement
pursuant to section 12022.53, subdivision (d) on that count. Appellant contends that the
imposition of this enhancement on the murder count was erroneous because
subdivision (j) of section 12022.53 provides that “the court shall impose punishment
pursuant to this section rather than imposing punishment authorized under any other
provision of law, unless another provision of law provides for a greater penalty or a
longer term of imprisonment.” He argues that section 190.2, subdivision (a)(21), which
mandated his sentence of life without parole, constitutes such a provision providing for a
longer term.
We agree with the determination in People v. Chiu (2003) 113 Cal.App.4th 1260,
where the court rejected this argument and held that the section 12022.53 subdivision (d)

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enhancement is properly imposed on a life without parole sentence. The court pointed
out that the argument set forth by appellant “equates offenses and enhancements for
punishment purposes” and determined that the term “‘another provision of law’” in
subdivision (j) of section 12022.53 refers to other provisions governing enhancements for
use of a firearm. (Chiu, supra, at pp. 1264-1265.)4 Accordingly, this claim must fail.
III. The section 12022.53, subdivision (d) enhancement was properly imposed and the
other enhancements need not be vacated or stricken.
In addition to the first degree murder conviction and the finding pursuant to
section 12022.53, subdivision (d) in count 1, appellant was convicted of the attempted
murder of Rivera in count 2 with the finding that he personally discharged a firearm
causing great bodily injury pursuant to the same enhancement statute. He was convicted
in counts 3 and 4, respectively, of the attempted murders of Chavez and Garcia, each with
the finding that he personally discharged a firearm within the meaning of section
12022.53, subdivision (c).
In addition to the enhancements indicated above, on which the trial court imposed
sentences, the jury found true various additional enhancement allegations as to each
count. The jury found that appellant personally used and discharged a firearm in
committing the murder of Bernal and the attempted murder of Rivera within the meaning
of subdivisions (b) and (c), respectively, of section 12022.53. It also found as to those
counts that appellant caused death or inflicted great bodily injury by discharging a
firearm from a motor vehicle within the meaning of section 12022.55. As to the
attempted murder of Rivera, the jury also found that appellant personally inflicted great
4 As appellant acknowledges, in another case addressing this issue, where the Court
of Appeal agreed with the argument raised here by appellant, the Supreme Court granted
the Attorney General’s petition for review and transferred the matter to the Court of
Appeal with directions to reconsider its opinion in light of Chiu. (People v. Shabazz
(2004) 118 Cal.App.4th 1458, review granted and matter transferred Sept. 15, 2004,
S126065.) The Shabazz court thereafter indicated that it disagreed with the conclusion
and reasoning in Chiu. (People v. Shabazz (2004) 125 Cal.App.4th 130, 147-150,
petitions for review filed Jan. 25, 2005, S131048.)

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bodily injury pursuant to section 12022.7, subdivision (a). As to the attempted murders
of Chavez and Garcia, the jury found that appellant personally used a firearm within the
meaning of subdivision (b) of section 12022.53. The trial court stated, as to each
enhancement on which it did not impose a term, that it “elect[ed] not to impose” those
enhancements because “to do so would constitute double use, and all of these acts
occurred on the same occasion.”
Appellant contends that the rule precluding multiple convictions for included
offenses applies to each of the enhancement allegations that were found true but on which
terms were not imposed on each count. He further contends that as to the murder count,
all of the enhancements, including the one imposed under section 12022.53,
subdivision (d), must be vacated because they were all included within the charge of first
degree murder based on a theory of drive-by shooting and within the drive-by special
circumstance. This contention is without merit.
Appellant first asserts that imposition of the section 12022.53, subdivision (d)
enhancement on the murder count violates principles of “merger” and section 654
because the facts and elements necessary to establish the drive-by shooting first degree
murder conviction and the drive-by special circumstance finding necessarily included his
conduct in intentionally discharging a firearm causing death, as required by the
enhancement statute.
In People v. Sanders (2003) 111 Cal.App.4th 1371, Division Five of this court
rejected a similar claim. Sanders held that the merger doctrine is inapplicable in this
situation and that section 654 does not preclude imposition of the section 12022.53,
subdivision (d) firearm use enhancement. (Id. at pp. 1374-1375.) We agree with the
analysis in Sanders and therefore reject appellant’s contention. Nothing in Apprendi,
supra, 530 U.S. 466, where the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt” (id. at p.
490), requires a different result with respect to the section 654 claim.

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We granted rehearing to consider whether under Apprendi, as interpreted by the
recent Supreme Court decision in Seel, supra, 34 Cal.4th 535, there is any merit to
appellant’s next claim, that neither the section 12022.53, subdivision (d) enhancement,
nor the section 12022.53, subdivision (b) and (c) enhancements, may be imposed on a
count of murder under a drive-by shooting theory under the rule precluding conviction of
both greater and lesser offenses, or to his claim that the enhancements found true but not
imposed on the attempted murder counts must be stricken on the same theory.5
Under section 954, a defendant may be convicted of any number of charged
offenses arising from a single act or course of conduct. Section 654 precludes multiple
punishment for an act or omission that is punishable by different provisions of law.
Thus, in general, when counts arise from a single act or course of conduct, multiple
convictions are permitted, although multiple punishment is not. (People v. Ortega (1998)
19 Cal.4th 686, 692 (Ortega).) However, there is an exception to the rule permitting
multiple convictions. “‘Although the reason for the rule is unclear, [the Supreme Court]
has long held that multiple convictions may not be based on necessarily included
offenses. [Citations.]’ [Citation.]” (Ibid.)6
Appellant argues that under Apprendi, conduct enhancements are treated similarly
to offenses for purposes of fundamental due process, including the right to jury trial and
5 We did not consider this issue at length in our original opinion. Appellant raised
the issue under the heading “The Appropriate Remedy” to the claimed section 654
violation, reiterating it in his challenge to the additional enhancements. We found no
error in the failure to grant relief under section 654 and otherwise rejected his argument.
6 Justice Chin provided an explanation for this rule in his concurring and dissenting
opinion in Ortega, supra, at page 705: “We have never clearly stated the reason for the
rule prohibiting conviction of both a greater offense and a necessarily included offense.
However, the rule is logical. If a defendant cannot commit the greater offense without
committing the lesser, conviction of the greater is also conviction of the lesser. To
permit conviction of both the greater and the lesser offense ‘“‘would be to convict twice
of the lesser.’”’ [Citation.] There is no reason to permit two convictions for the lesser
offense.”

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the requirement of proof beyond a reasonable doubt. He asserts, based on Seel’s
statement that “‘Apprendi treated the crime together with its sentence enhancement as the
“functional equivalent” of a single “greater” crime’” (Seel, supra, 34 Cal.4th at p. 539,
fn. 2), that such enhancements must be treated like criminal offenses for purposes of
sections 954 and 654. He therefore claims that, under the accusatory pleading test for
determining whether one offense is a lesser included offense of another, the section
12022.53 firearm enhancements are necessarily included within the offense of drive-by
shooting first degree murder.
In effect, appellant asks us to hold, pursuant to Apprendi, that when a defendant is
convicted of first degree murder on a theory of drive-by shooting, a firearm discharge
enhancement or firearm use enhancement can never be imposed, although found true by a
jury beyond a reasonable doubt. Even assuming that the accusatory pleading test applies
to the determination of whether one offense is a lesser included offense of another for
purposes of multiple conviction, an issue the Supreme Court has not decided,7 we decline
to so hold.8
Appellant acknowledges that in People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott),
the majority held that “a ‘use’ enhancement is not part of the accusatory pleading for the
purpose of defining lesser included offenses.” (Id. at p. 96.) The majority opinion stated,
“In the first place, California courts have consistently stated that ‘section 12022.5 does
not prescribe a new offense but merely additional punishment for an offense in which a
firearm is used.’ [Citations.]” (Wolcott, supra, at p. 100.) The court rejected the
argument that the accusatory pleading test should apply to make one offense a lesser
7 In People v. Montoya (2004) 33 Cal.4th 1031, the Supreme Court stated that the
accusatory pleading test is generally used to determine whether to instruct on an
uncharged lesser offense. Although the court observed that some Courts of Appeal have
held that the accusatory pleading test is inapplicable to the issue of multiple convictions,
it found it unnecessary to decide that issue. (Id. at pp. 1035-1036.)
8 In view of appellant’s life without parole sentence, of course, this claim is
effectively moot.

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included offense of another because of an enhancement allegation, when it is not a
necessarily included offense as a matter of law. The court pointed out that the accusatory
pleading test rests on principles of due process, that the accused must have notice of the
charges against him, and that “[t]he application of those principles to an enhancement
allegation . . . is unclear since that allegation becomes relevant only if the defendant is
convicted of the substantive crime.” (Id. at p. 101.)
The Wolcott majority further stated that “even if California could constitutionally
consider enhancement allegations as part of the accusatory pleading for the purpose of
defining lesser included offenses, we see no reason to adopt that course. Not only is the
weight of authority against it, but the result would be to confuse the criminal trial.
Present procedure contemplates that the trier of fact first determines whether the
defendant is guilty of the charged offense or a lesser included offense, and only then
decides the truth of any enhancements.” (Wolcott, supra, 34 Cal.3d at p. 101.)
Appellant urges, however, that in light of Apprendi, particularly as that case has
been interpreted in Seel, the majority decision in Wolcott cannot stand and that we must
give effect to the dissenting opinion, where Chief Justice Bird expressed the view that
enhancement allegations should be treated as part of the accusatory pleading in
determining whether one offense is a lesser included offense of another. The Wolcott
dissent challenged the majority’s statement that the firearm use allegation becomes
relevant only if the defendant is convicted of the substantive offense by arguing that the
truth of the firearm use allegation is decided at the same proceeding at which the
evidence of the underlying crime is presented, and the firearm evidence must be refuted
by the defendant at the same time as the evidence on the substantive offense. (Wolcott,
supra, 34 Cal.4th at pp. 111-112 (dissenting opn. of Bird, C. J.).) The dissent challenged
the majority’s statement that the firearm enhancement provision does not prescribe a new
offense by arguing that this rationale conflicted with a then-recent Supreme Court
pronouncement that enhancement allegations were to be treated the same as substantive
offenses for purposes of section 995 challenges. (Wolcott, supra, at p. 112 (dissenting
opn. of Bird, C. J.).)

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Appellant argues that, after Apprendi, the Wolcott dissent must govern and
enhancement allegations must be considered in the determination of lesser included
offenses under the accusatory pleading test. We conclude that nothing in Apprendi
undermines the decision of the majority in Wolcott.
The rule of Apprendi, that any fact other than the fact of a prior conviction that
increases the penalty for a crime beyond the statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt, rests on the reasoning that “[t]he federal
Constitution requires the elements of a crime to be proved beyond a reasonable doubt
because they expose the defendant to punishment; likewise, the elements of a sentence
enhancement must be proved beyond a reasonable doubt if there is exposure to increased
punishment. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.)
In Seel, our Supreme Court disapproved an earlier decision that held that the
allegation under section 664, subdivision (a), that an attempted murder was willful,
deliberate and premeditated, was a penalty provision and did not evoke double jeopardy
protection. The Seel court observed that in Apprendi, the United States Supreme Court
stated, “‘[W]hen the term “sentence enhancement” is used to describe an increase beyond
the maximum authorized statutory sentence, it is the functional equivalent of an element
of a greater offense than the one covered by the jury’s guilty verdict.’ ([Apprendi, supra,
530 U.S.] at p. 494 fn. 19.)” (Seel, supra, 34 Cal.4th at pp. 546-547.) The Seel court
concluded that, under the mandate of Apprendi, the section 664, subdivision (a) penalty
provision constitutes an element of the offense because it exposes a defendant to a greater
punishment than that authorized by the jury’s verdict and “‘goes precisely to what
happened in the “commission of the offense.”’” (Seel, supra, at pp. 548-549.) It
therefore held that the federal double jeopardy clause applies to bar retrial on the
premeditation allegation. (Id. at p. 541.)
Appellant argues, in effect, that because an enhancement may be the functional
equivalent of an element of a greater offense, it is also the equivalent of a new
substantive offense for purposes of the multiple conviction rule. Such a determination
would be an unwarranted extension of the Apprendi doctrine.

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As indicated, the Apprendi rule rests on the rationale that the elements of a
sentence enhancement, as well as the elements of a crime, must be proved beyond a
reasonable doubt because they expose the defendant to increased punishment. (People v.
Sengpadychith, supra, 26 Cal.4th at pp. 325-326.) Nothing in Apprendi or Seel undercuts
the reasoning behind the Supreme Court’s determination in Wolcott that enhancement
allegations are not to be considered in determining lesser included offenses, and nothing
in Apprendi or Seel lends greater weight to the Wolcott dissent. The rationale of
Apprendi that led to the conclusion in Seel that a penalty provision allegation such as that
under section 664, subdivision (a) constitutes an element of a greater offense meriting
double jeopardy protection does not alter the reasoning by the majority in Wolcott, over
Chief Justice Bird’s dissent, that a firearm use enhancement “‘does not prescribe a new
offense but merely additional punishment . . . .’” (Wolcott, supra, 34 Cal.3d at p. 100.) It
also remains true, as stated by the majority in Wolcott, over Chief Justice Bird’s dissent,
that “present procedure contemplates that the trier of fact first determines whether the
defendant is guilty of the charged offense or a lesser included offense, and only then
decides the truth of any enhancements.” (Id. at p. 101.)
The rule precluding multiple conviction when one substantive offense is a lesser
included offense of another substantive offense, and the reason for that rule as expressed
by Justice Chin in his concurring and dissenting opinion in Ortega, supra, 19 Cal.4th at
page 705, would not be served by a pronouncement that a conduct enhancement that
contains the same elements as a substantive offense, or, as appellant states, is “subsumed
within” an offense, cannot stand when a defendant is convicted of the offense.
Enhancements are not substantive offenses and an enhancement is not a lesser included
offense of a substantive offense for purposes of instruction. (People v. Dennis (1998) 17
Cal.4th 468, 500-503.) We conclude that the same principle applies for purposes of
multiple conviction. The rationale relied upon by the Supreme Court in Wolcott remains
sound, even in light of Apprendi, and we reject appellant’s contention that, under
Apprendi, we must vacate or strike the firearm enhancements that were found true by the
jury beyond a reasonable doubt.

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IV. Section 12022.53, subdivision (f) requires the striking of certain enhancement
allegations found true under that section and the imposition and staying of others.
Although we have rejected appellant’s contention that the rule precluding multiple
convictions on included offenses applies to the enhancements found true by the jury,
appellant’s challenge to the enhancements on which sentences were not imposed requires
additional discussion.
Section 12022.53, subdivision (f) provides, “Only one additional term of
imprisonment under this section shall be imposed per person for each crime. If more than
one enhancement per person is found true under this section, the court shall impose upon
that person the enhancement that provides the longest term of imprisonment. An
enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4,
12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement
imposed pursuant to this section. An enhancement for great bodily injury as defined in
Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an
enhancement imposed pursuant to subdivision (d).”9
In People v. Bracamonte (2003) 106 Cal.App.4th 704, the court held as a matter of
statutory interpretation that the appropriate procedure where multiple firearm use and
discharge enhancement allegations under section 12022.53 have been found true is to
“stay the execution of all such enhancements except for the one which provides the
longest imprisonment term.” (Bracamonte, supra, at p. 713.) The Bracamonte court
determined that the language of subdivision (f) requires that enhancement allegations
under sections 12022.7 and 12022.55 be stricken. (Bracamonte, supra, at p. 712, fn. 5.)
We so order.10
9 People v. Woods, formerly (2004) 119 Cal.App.4th 1117, on which appellant
relies as to this issue, has been ordered not to be published and may not be cited.
10 Although the trial court did not impose any enhancements under section 12022.53,
subdivisions (b) or (c), there is no discretion to be exercised as to the terms for those
enhancements, and remand would be an idle act. (Cf. Bracamonte, supra, at p. 714.)

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V. The abstract of judgment must be corrected.
The trial court awarded appellant 549 days of actual presentence custody credit.
The abstract of judgment, however, does not reflect this award of credit. Appellant
contends, and respondent concedes, that the abstract of judgment must be corrected to
reflect this credit. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The judgment is modified to impose and stay the 10-year enhancements under
section 12022.53, subdivision (b) on counts 1 through 4, to impose and stay the 20-year
enhancements under section 12022.53, subdivision (c) on counts 1 and 2, to strike the
enhancement allegations under section 12022.55 on counts 1 and 2, and to strike the
enhancement allegation under section 12022.7 on count 2. In all other respects, the
judgment is affirmed. The trial court is directed to correct the abstract of judgment to
reflect the award of 549 days of presentence custody credit.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
DOI TODD
We concur:
_____________________, P. J.
BOREN
_____________________, J.
ASHMANN-GERST

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