P. v. Waller

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Filed 12/28/06 P. v. Waller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORY ELDER WALLER,
Defendant and Appellant.
E038456
(Super.Ct.No. FVA017512)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti,
Judge. Affirmed as modified.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., and Lilia
E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant of two counts of attempted premeditated murder
(counts 1 and 2); two counts of assault with a firearm (counts 3 and 4); first degree
burglary (count 5 ); and carjacking (count 6). The jury also found true various firearm
and weapon allegations on all counts. The court sentenced defendant to 68 years to life.
Defendant argues he could not be convicted of counts 3 and 4, because they were
lesser included offenses of counts 1 and 2. He also claims the court made several
sentencing errors. We conclude the court should have stayed execution of the term for
count 4 pursuant to Penal Code section 654. Otherwise, we affirm.
I
FACTS
A. Counts 1-5 (Attempted Murder, Assault With a Firearm, Burglary)
Defendant and Antina Gilmore began dating in 2000. The relationship eventually
developed into a boyfriend/girlfriend relationship but began to falter later in 2000
because Gilmore believed defendant was seeing other women. Gilmore stopped seeing
defendant in February 2002, after he became violent with her on several occasions.
Gilmore reported the most recent violent incident to the police and received a
subpoena to appear in court on May 21, 2002. On that date, about 7:00 a.m., defendant
entered Gilmore’s house with a sawed-off shotgun. Gilmore’s six children; her sister,
Midia Wright; and her nephew were in the house at the time.
Defendant went to Gilmore’s bedroom, kicked in the locked door, and entered the
room. Gilmore was standing in front of the bed. Defendant said, “Yeah, yeah, bitch” and
shot her in the shoulder with the shotgun. He walked out and down the hall toward
Wright’s bedroom.

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Wright heard the noise, ran to the hallway, and saw defendant. Defendant turned
the shotgun on Wright and said, “It is your turn now, bitch.” She ran to the bathroom and
locked the door. Defendant kicked the door in and told her to get in the bathtub.
Wright turned away from defendant and heard the trigger click, but nothing
happened. Wright saw that defendant was reloading the gun. She hit the gun, and the
shell fell to the floor. Defendant started beating Wright over the head with the gun, and
she fell to the floor. He hit her a few more times and walked out of the bathroom.
Wright followed defendant out of the bathroom with blood all over her shirt,
coming from her head. Gilmore came out of her bedroom, also bleeding. Defendant hit
Gilmore in the back of her head with the shotgun, knocking her to the ground, and ran out
of the house with the gun.
B. Count 6 (Carjacking)
As defendant was leaving Gilmore’s house, Tony Pruitt was driving down a street
in the vicinity of Gilmore’s house to drop off his brother and sister at a babysitter’s
house. As he pulled up to the babysitter’s and parked, he saw a man running out of the
house ahead with a shotgun.
The man with the shotgun ran up to Pruitt’s car, put the gun through the open
window to Pruitt’s head, and said, “Get your ass out of the car.” Everyone got out of the
car, and the man got in and drove off.
Pruitt could not identify his assailant. However, when he was shown a shotgun
that Gilmore and Wright had identified as the one used by defendant, Pruitt recognized it
as the weapon his assailant had used.

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Police later found Pruitt’s car parked across the street from a house. In the
backyard of the house, they found a shortened shotgun under a sweatshirt, covered with
dirt and leaves. Inside the sweatshirt was a set of keys to Pruitt’s car.
C. Defense
Defendant testified and admitted shooting Gilmore and beating Wright over the
head with the shotgun. However, he denied beating Gilmore with the shotgun.
Defendant also denied pointing the gun at Wright or trying to shoot her with it. He
admitted he “probably” took Pruitt’s car.
Defendant further testified that when he dated Gilmore in 2002, he was taking
medication for depression and was under the care of a psychotherapist. Defendant said
he went to Gilmore’s house on May 21, 2002, because a message was left on his
answering machine from Gilmore’s brother and sister saying they were going to harm his
children. Defendant only intended to scare Gilmore and Wright, not harm them.
Dr. Kania, a defense psychologist, testified that defendant showed symptoms of a
severe depressive disorder, which had begun years earlier, when defendant’s wife died
and he learned he had contracted HIV from her. Defendant suffered from that disorder,
with psychotic symptoms, in or around May 2002. Defendant had a delusion at that time
that Gilmore’s brother was calling him and threatening to kill him and his sons.
A week before the offenses, defendant told a registered nurse from the Inland
AIDS Project that he suffered from depression and anxiety, was suicidal, and heard
voices telling him the world would be better if he killed himself. However, defendant did
not say anything about having been threatened.

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II
DISCUSSION
A. Multiple Conviction
Defendant argues he could not be convicted of both count 1, attempted murder of
Gilmore, and count 3, assault with a firearm on Gilmore, because the assault was a
necessarily included offense of the attempted murder. He similarly contends count 4,
assault with a firearm on Wright, was a necessarily included offense of count 2,
attempted murder of Wright. He bases this claim on the fact that the information alleged
firearm use enhancements in all four counts, so that as alleged in the accusatory
pleading, the attempted murder counts included all of the elements of the assault counts.
This claim fails because the California Supreme Court has held that only the
“statutory elements” test, and not the “accusatory pleading” test, is to be used in deciding
whether multiple convictions are proper. Under the statutory elements test, the assaults
were not necessarily included offenses of the attempted murders.
1. The test for necessarily included offenses in multiple conviction
cases
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38
Cal.4th 1224, 1226 (Reed); see Pen. Code, § 954.)1 However, “[a] judicially created
exception to the general rule permitting multiple conviction ‘prohibits multiple
1 All further statutory references are to the Penal Code unless otherwise
stated.

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convictions based on necessarily included offenses.’ [Citation.]” (Reed, at p. 1227; see
also People v. Pearson (1986) 42 Cal.3d 351, 355.)
Ordinarily, one offense may be necessarily included in another under either of two
tests. “Under the elements test, if the statutory elements of the greater offense include all
of the statutory elements of the lesser offense, the latter is necessarily included in the
former. Under the accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the latter is necessarily included
in the former. [Citation.]” (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
In Reed, however, the Supreme Court held that where the validity of multiple
convictions is in issue, only the statutory elements test is to be used in determining
whether an offense is necessarily included in another.2 The court explained: “The
accusatory pleading test arose to ensure that defendants receive notice before they can be
convicted of an uncharged crime. . . . But this purpose has no relevance to deciding
whether a defendant may be convicted of multiple charged offenses.” (Reed, supra, 38
Cal.4th at p. 1229.)
Accordingly, the Reed court concluded: “. . . Courts should consider the statutory
elements and accusatory pleading in deciding whether a defendant received notice, and
therefore may be convicted, of an uncharged crime, but only the statutory elements in
deciding whether a defendant may be convicted of multiple charged crimes.” (Reed,
2 Neither party cites or discusses Reed, which was issued more than a month
before the People’s brief was filed and more than two months before defendant’s reply
brief was filed.

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supra, 38 Cal.4th at p. 1231.) Under the statutory elements test, the court held, the
defendant properly was convicted of possession of a firearm by a felon, carrying a
concealed firearm, and carrying a loaded firearm while in a public place, all based on the
same act of carrying a handgun. Although the information alleged the defendant’s prior
felony conviction in all three counts, so that under the accusatory pleading test the two
carrying counts would have been necessarily included offenses, being a felon was not a
statutory element of the carrying counts. (Id. at pp. 1228, 1230-1231.)
Here, similarly, use of a firearm is not a statutory element of attempted murder.
Therefore, “[u]nder the statutory elements test, assault with a firearm is not included
within attempted murder. [Citation.]” (People v. Parks (2004) 118 Cal.App.4th 1, 6; see
also People v. Cook (2001) 91 Cal.App.4th 910, 918-919 [assault with a firearm not
necessarily included in murder under statutory elements test].) Reed thus requires
rejection of defendant’s claim of improper multiple conviction.3
3 As Reed controls the disposition of this case, it is unnecessary to consider
People v. Wolcott (1983) 34 Cal.3d 92, which the People cite as controlling. The
Supreme Court in Wolcott held that an firearm use enhancement allegation should not be
considered in determining whether a crime is a lesser included offense of the crime in
which the firearm was used. (Id. at p. 101.) In Wolcott, however, the issue was whether
the trial court had to instruct sua sponte on the alleged lesser included offense, not
whether the defendant could be convicted of multiple offenses for the same conduct. (Id.
at p. 102.) Reed makes clear that the test to be used in deciding whether one offense is
necessarily included in another varies depending on the context in which the issue arises.
(Reed, supra, 38 Cal.4th at p. 1231 [“it is logically consistent to apply the accusatory
pleading test when it is logical to do so . . . but not when it is illogical to do so”].)
Consequently, Wolcott may or may not apply to multiple conviction cases.

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2. Grant of review in Sloan
As defendant notes, the California Supreme Court is currently reviewing the
following question: “For purposes of the ban on conviction of necessarily included
offenses (see People v. Pearson[, supra,] 42 Cal.3d 351), should enhancement allegations
be considered in determining when a lesser offense is necessarily included in a charged
offense as pled in the information or indictment?” (People v. Sloan, review granted June
8, 2005, S132605, Supreme Ct. Mins., June 8, 2005; see also People v. Izaguirre, review
granted June 8, 2005, S132980.) If the court were to hold enhancements should be
considered, it would require reversal here since the firearm use enhancement allegations
would make counts 3 and 4 lesser included offenses of counts 1 and 2.
However, the issue posed in Sloan would appear to have been effectively settled
by Reed. If, as Reed holds, a court cannot consider how a crime is pled in the accusatory
pleading in determining whether the crime is an included offense for purposes of multiple
conviction, then the issue of whether an offense is included in another “as pled in the
information or indictment” should not arise. At any rate, as we find Reed controlling we
simply rely on that decision pending further guidance from the Supreme Court in Sloan.
3. Apprendi and Seel
While as stated defendant does not discuss Reed, he does make an argument that,
if meritorious, would call into question Reed’s validity under the federal Constitution in
cases like this one. The argument is based on Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi) and People v. Seel (2004) 34 Cal.4th 535, 548 (Seel).
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

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maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi, supra, 530 U.S. at p. 490.) The court further stated that “when 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.” (Id. at p. 494, fn. 19.)
In Seel, the California Supreme Court applied Apprendi’s reasoning in holding that
the federal double jeopardy clause barred the state from retrying the defendant on an
allegation that an attempted murder was premeditated, after a Court of Appeal ruling that
the evidence was insufficient to prove premeditation. (Seel, supra, 34 Cal.4th at p. 550.)
The court reasoned that since a finding of premeditation exposes the defendant to a
greater punishment than the usual statutory maximum for attempted murder, under
Apprendi premeditation must be treated as “‘the functional equivalent of an element of a
greater offense than the one covered by the jury’s guilty verdict.’ [Citation.]” (Seel, at p.
548.)
Focusing on the “functional equivalent” language in Apprendi and Seel, defendant
argues that firearm use must be treated as the functional equivalent of an element of any
offense in which it is alleged for the purpose of seeking an enhanced sentence.
Therefore, in the context of multiple conviction, a court must determine the elements of
an offense by considering not only the statutory definition but also any enhancement
allegations. Thus, the court would have to use the accusatory pleading test -- just what
Reed forbids.
Apprendi and Seel do not support defendant’s argument. To say that an
enhancement or premeditation allegation is the functional equivalent of an element of the

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underlying crime for one purpose is not to say that it is for all purposes. Neither
Apprendi nor Seel involved the propriety of multiple convictions for included offenses in
a single proceeding. In Apprendi, the issue was whether enhancement allegations must
be proved to a jury beyond a reasonable doubt, a matter not in issue here. Seel concerned
retrial of a premeditation allegation in a second proceeding, also not in issue here.
Moreover, Seel was based on the federal double jeopardy clause.4 That clause
“‘“protects against a second prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.”’ [Citation.]” (Ohio v. Johnson
(1984) 467 U.S. 493, 498.)
Defendant cannot invoke either of the first two protections, because he was not
subjected to a second prosecution after acquittal or conviction. Defendant also cannot
invoke the third protection, against multiple punishments. The United States Supreme
Court has consistently held that the multiple punishment bar does not prohibit a state
from charging, prosecuting, or punishing a defendant for included offenses, as long as it
does so in a single proceeding.
4 Defendant did not assert in the trial court that the federal double jeopardy
clause barred conviction on counts 3 and 4 and cannot do so for the first time on appeal.
(People v. Scott (1997) 15 Cal.4th 1188, 1201; People v. Marshall (1996) 13 Cal.4th 799,
824, fn. 1.) However, we consider the application of the double jeopardy clause anyway,
because if defendant’s argument is correct on the merits and would have been a crucial
defense at trial, failure to assert it in the trial court would be ineffective assistance of
counsel. (Marshall, at p. 824, fn. 1.)

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Thus, in Ohio v. Johnson, supra, 467 U.S. 493, the court said that “the State is not
prohibited by the Double Jeopardy Clause from charging [a defendant] with greater and
lesser included offenses and prosecuting those offenses in a single trial.” (Id. at p. 500.)
In Missouri v. Hunter (1983) 459 U.S. 359, the court said that “simply because two
criminal statutes may be construed to proscribe the same conduct . . . does not mean that
the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative
punishments pursuant to those statutes.” (Id. at p. 368.) Most recently, in Hudson v.
United States (1997) 522 U.S. 93, the court said that the double jeopardy clause protects
against imposition of multiple punishments “only when such occurs in successive
proceedings . . . .” (Id. at p. 99.)
If the double jeopardy clause does not bar charging, prosecuting, or punishing a
defendant for included offenses in a single proceeding, then a fortiori it does not bar
multiple conviction. In fact, the only effect of the clause in a single proceeding is to
“prevent the sentencing court from prescribing greater punishment than the legislature
intended.” (Missouri v. Hunter, supra, 459 U.S. at p. 366.) Therefore, “if it is evident
that a state legislature intended to authorize cumulative punishments, a court’s inquiry is
at an end.” (Ohio v. Johnson, supra, 467 U.S. at p. 499, fn. 8.) By parity of reasoning, if
it is evident that the Legislature intended to authorize multiple convictions for included
offenses, the double jeopardy clause does not bar a court from imposing such
convictions.
Our Supreme Court found in Reed that “[t]he Legislature has made clear that a
defendant may be convicted of more than one offense even if they arise out of the same
act or course of conduct. [Citation.]” (Reed, supra, 38 Cal.4th at p. 1230.) Thus, there is

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no basis for applying the double jeopardy bar in this case, and Seel does not undermine
Reed. Reed therefore controls and requires affirmance of counts 3 and 4.
B. Section 654
Defendant next argues that even if multiple conviction on counts 1 and 3 and
counts 2 and 4 was proper, separate punishment for all four counts violated section 654.
Therefore, the separate consecutive terms imposed on defendant for counts 3 and 4 must
be stayed.
Section 654 prohibits punishing a defendant “under more than one provision” of
law for an “act or omission . . . .” (§ 654, subd. (a).) Despite section 654’s use of the
singular “act or omission,” it precludes multiple punishment not only for “a single act or
omission,” but also for “an indivisible course of conduct” comprising more than one act.
(People v. Deloza (1998) 18 Cal.4th 585, 591.) “ . . . ‘Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
Therefore, for a defendant to be punished under more than one statute, the
evidence must show he committed (1) more than one criminal act, pursuant to (2) more
than one criminal objective. (See People v. Latimer (1993) 5 Cal.4th 1203, 1216
[multiple punishment improper where evidence showed “separate acts,” but not separate
objectives]; People v. Arndt (1999) 76 Cal.App.4th 387, 397 [multiple punishment proper
where crimes “involved not only separate objectives, but separate acts as well”].)

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Defendant asserts counts 1 and 3 were based on the same act (shooting Gilmore)
pursuant to a single intent (disabling her). He likewise asserts counts 2 and 4 were based
on the same course of conduct (pointing the shotgun at Wright, trying to shoot her, and
then hitting her over the head with it) pursuant to a single intent (disabling her).
1. Counts 1 and 3
The evidence amply showed counts 1 and 3 involved separate criminal acts.
Defendant errs in assuming the only act supporting counts 1 and 3 was his shooting of
Gilmore. After shooting Gilmore, defendant left her and pursued Wright into the
bathroom, where he bludgeoned her. He then came out of the bathroom, encountered
Gilmore, and hit over the head with the shotgun, a wholly separate act from his earlier
attempt to murder her.
The prosecutor thus argued hitting Gilmore was a separate assault with a firearm.
Besides being supported by the facts, the argument was legally correct. Using a firearm
as a bludgeon constitutes an assault with the firearm. (People v. Fain (1983) 34 Cal.3d
350, 357, fn. 6.)
The evidence also showed counts 1 and 3 involved separate objectives. When a
court imposes separate terms on two counts, it implicitly finds that the crimes for those
two counts “involved more than one objective, a factual determination that must be
sustained on appeal if supported by substantial evidence [citation].” (People v. Osband
(1996) 13 Cal.4th 622, 730.) In reviewing the implicit finding, an appellate court must
view the evidence most favorably to the judgment and presume in support of the
sentencing order the existence of every fact the trier could reasonably deduce from the
evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)

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The court’s implicit finding of separate objectives was supported here. As the
Supreme Court has noted, if the defendant’s objectives were “consecutive even if
similar,” courts have found separate punishment to be justified. (People v. Britt, supra,
32 Cal.4th at p. 952.) In People v. Latimer, supra, 5 Cal.4th 1203, the court expressly
stated, “[W]e do not intend to question the validity of decisions finding consecutive, and
therefore separate, intents . . . .” (Id. at p. 1216.)
In People v. Coleman (1989) 48 Cal.3d 112, the Supreme Court found
consecutive, separate intents supported separate punishment for robbing the victim and
later assaulting her by stabbing her. Between the robbery and the assault, the defendant
had murdered a second victim in the same house. The court noted that “[p]rior to the
assault, defendant had essentially completed the robbery,” and therefore the trial court
could find he assaulted the victim for a different purpose, to keep her from reporting the
murder. (Id. at pp. 162-163.)
Court of Appeal decisions reach the same conclusion as in Coleman where, as in
Coleman, a period of time has intervened between one act of violence and a later one
against the same victim. In People v. Trotter (1992) 7 Cal.App.4th 363, the intervening
period was only a minute. The defendant, while driving, fired a shot at a pursuing
officer, resumed driving, paused for about a minute, turned back, and shot again. (Id. at
p. 366.)
The court held each shot was a separately punishable assault. “Each shot required
a separate trigger pull.” (People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Further,
there was “time prior to each shot for defendant to reflect and consider his next action.”
(Ibid.) Therefore, “each shot evinced a separate intent to do violence . . . .” (Ibid.)

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In People v. Surdi (1995) 35 Cal.App.4th 685, the court cited Trotter in holding
separate punishment was proper where gang members stabbed the victim while traveling
in a van, stopped at a school to consider their next actions, and then took turns stabbing
the victim again. The court said: “The fact Surdi assisted multiple stabbing episodes,
each of which evinced a separate intent to do violence, precludes application of section
654 with respect to the offenses encompassed within the episodes.” (Surdi, at pp.689-
690.)
Trotter was also followed in People v. Braz (1997) 57 Cal.App.4th 1, where the
court held the defendant could be separately punished for two counts of child
endangerment for first physically abusing her son and then leaving him without
summoning assistance. The court stated: “A separate and distinct harm to Anthony
occurred when, after his injury, he was left to suffer until he lost consciousness.” (Id. at
p. 11.)
Here, defendant first tried to murder Gilmore, broke off that attack and tried to
murder Wright, and then returned to find Gilmore had come out of her bedroom.
Consequently, a substantial period elapsed between the shooting and the assault on
Gilmore, during which defendant had time to form a separate objective of inflicting a
separate injury. The attempted murder of Gilmore was not just “essentially completed”
(People v. Coleman, supra, 48 Cal.3d at p. 162) by the time defendant assaulted Gilmore
by hitting her with the shotgun, it was fully completed.
Moreover, defendant hit Gilmore only once, as opposed to Wright, whom he hit
repeatedly. That fact suggested his objective in hitting Gilmore was not to murder her as
before, but to keep her from interfering with his escape as in Coleman, or simply to inflict

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a new injury when he found, probably unexpectedly, she had managed to come out of her
bedroom. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 12 [stating, in dictum,
that a defendant may be punished separately where his additional act of violence against
the same victim “was not part of defendant’s original objective but was subsequently
conceived in response to an unexpected event occurring during commission of the
underlying crime”].)5
Finally, defendant’s assertion that there was only one objective, to “disable”
Gilmore, is unpersuasive. First, when defendant hit Gilmore with the shotgun, he had
already disabled her by shooting her in the shoulder. In any event, an objective to disable
a victim is too general to application of section 654. Under analogous circumstances, the
Supreme Court in People v. Perez (1979) 23 Cal.3d 545 rejected the defendant’s
contention that his multiple sex crimes were motivated by a single intent and objective of
obtaining sexual gratification, stating: “To accept such a broad, overriding intent and
objective to preclude punishment for otherwise clearly separate offenses would violate
the statute’s purpose to insure that a defendant’s punishment will be commensurate with
his culpability. [Citation.]” (Id. at p. 552.)
5 Supreme Court dictum “‘carries persuasive weight and should be followed
where it demonstrates a thorough analysis of the issue or reflects compelling logic.
[Citations.]’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 300.) Beamon’s
dictum came at the end of a thorough analysis of the criteria for finding separate
objectives under section 654 and therefore should be followed here. (People v. Beamon,
supra, 8 Cal.3d at pp. 636-640.)

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Defendant’s act of assaulting Gilmore after earlier trying to murder her increased
his culpability and justified separate punishment. Substantial evidence supported the
court’s imposition of consecutive terms for counts 1 and 3.
2. Counts 2 and 4
Counts 2 and 4, unlike counts 1 and 3, did not involve separate criminal acts of
attempted murder and assault. The People’s theory that the assault consisted of pointing
the shotgun at Wright and the attempted murder consisted of bludgeoning her with the
shotgun was legally untenable.
“[T]o constitute an assault, the defendant must not only intend to commit a battery
[citation]; he must also have the present ability to do so.” (People v. Wolcott, supra, 34
Cal.3d at p. 99.) For that reason, “[t]he threat to shoot with an unloaded gun is not an
assault, since the defendant lacks the present ability to commit violent injury.
[Citations.]” (People v. Fain, supra, 34 Cal.3d at p. 357, fn. 6.) This is true “‘regardless
of the fact whether the party holding the gun thought it was loaded, or whether the party
at whom it was menacingly pointed was thereby placed in great fear.’ [Citation.]”
(Wolcott, at p. 99.)
Defendant testified, without contradiction, that the shotgun was a single-barrel
weapon that had to be reloaded to be fired again. When defendant pointed the gun at
Wright, he had already fired a shot, striking Gilmore. Wright testified defendant tried to
reload the gun, but she interfered, and he used it to bludgeon her instead. Therefore, the
evidence supported only one inference, that the gun was not loaded when defendant
pointed it at Wright, as Wright surmised.

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Pointing an unloaded gun with the threat or intent to use it as a club or bludgeon is
an assault with the gun. (See People v. Wolcott, supra, 34 Cal.3d at p. 99 [“‘if a person
points an unloaded gun at another, without any intent or threat to use it as a club or
bludgeon, he does not commit . . . assault under Penal Code section 240’”].) In Fain, the
Supreme Court held there was sufficient evidence of assault where even if the jury
believed the gun was not loaded, the defendant struck two of the victims with the gun and
was near enough to the remaining victim to strike him as well. (People v. Fain, supra, 34
Cal.3d at pp. 357, fn. 6.)
Here, though, there was no evidence that defendant struck or threatened to strike
anyone with the shotgun before he began, evidently on the spur of the moment, to beat
Wright with it. Therefore, there is no basis for finding the previous pointing of the gun at
Wright to be an assault.
Accordingly, the only assault defendant committed against Wright was beating her
with the gun. That assault, as stated, was the same act on which the prosecutor relied to
prove attempted murder. Although defendant hit Wright with the gun numerous times,
there was no evidence he paused or reflected in between the blows, such as might bring
the case within Trotter.
Consequently, the attempted murder and assault both had to be based on the
beating. Both crimes therefore arose from a single “act or omission” that was punishable
“under more than one provision” of law (§ 654, subd. (a)), and separate punishment was
prohibited. (People v. Parks (1971) 4 Cal.3d 955, 961, fn. 3 [§ 654 precluded

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punishment for both attempted murder and assault with a deadly weapon for shooting
victim one time].) The court should have stayed execution of the term for count 4.6
C. Imposition of Firearm and Weapon Enhancements Under Sections 12022.5
and 12022
When defendant committed the present offenses, as now, section 12022.53
imposed enhancements for personal firearm use (subd. (b)), discharge (subd. (c)), or
discharge causing great bodily injury or death (subd. (d)). Section 12022.53 further
provided that only the longest applicable enhancement under section 12022.53 was to be
imposed, and that no additional firearm enhancements were to be imposed under section
12022.5 or section 12022. (§ 12022.53, subd. (f).)
Section 12022.53 also provided: “Notwithstanding Section 1385 or any other
provision of law, the court shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section.” (§ 12022.53, subd. (h).)
At the time defendant committed the present offenses, as now, section 12022.5,
subdivision (a) imposed an enhancement for personal use of a firearm.
Finally, when defendant committed the present offenses, as now, section 12022,
subdivision (b)(2) imposed an enhancement for personally using a deadly or dangerous
weapon in the commission of a carjacking.
6 Pointing the unloaded gun at Wright may have constituted a crime other
than assault, but that issue has not been raised or argued and hence is not properly before
us.

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The jury in this case found true firearm use allegations on count 1, for attempted
murder, under section 12022.53, subdivisions (b), (c), (d), and section 12022.5,
subdivision (a). The jury found true firearm use allegations on count 2, for attempted
murder, under section 12022.53, subdivision (b) and section 12022.5, subdivision (a).
The jury also found true firearm use allegations on count 6, for carjacking, under section
12022.53, subdivision (b) and section 12022.5, subdivision (a) and found true a weapon
use allegation under section 12022, subdivision (b)(2) on that count.
Pursuant to section 12022.53, subdivision (f), the court stayed all of the above
enhancements except the longest applicable one for each count, which in each case came
from section 12022.53. Defendant contends the court should have struck, not merely
stayed, the enhancements imposed under sections 12022.5 and 12022.
1. Bracamonte
People v. Bracamonte (2003) 106 Cal.App.4th 704 supports defendant’s position.
The court in that case held that where multiple enhancements are applicable under the
various subdivisions of section 12022.53 and under section 12022.5, the court for each
count must (1) impose but stay all of the section 12022.53 enhancements except the
longest one, and (2) not impose, but strike the section 12022.5 enhancements.
(Bracamonte, at pp. 711, 714.) The court in this case complied with holding (1), but not
with holding (2).
The Bracamonte court supported its determination that unused section 12022.53
enhancements need only be stayed, but extra section 12022.5 enhancements must be
struck, with this reasoning:

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(1) Section 12022.53, subdivision (f) specifically states that if an enhancement
under section 12022.53 is imposed, a section 12022.5 enhancement “shall not be
imposed . . . .” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 712.) “Such
directive is mandatory.” (Id. at p. 712, fn. 5.)
(2) The trial court “must either impose an enhancement or strike the underlying
finding . . . . It is without authority simply to stay the enhancement. [Citations.]”
(People v. Bracamonte, supra, 106 Cal.App.4th at p. 711.)
(3) Since a section 12022.5 enhancement “shall not be imposed,” and the court “is
without authority” to stay the enhancement, the only alternative is to strike the
enhancement. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 711-712.)
(4) Although section 12022.53, subdivision (f) says that unused enhancements
under section 12022.53, as well as under section 12022.5, “shall not be imposed,” this
language cannot be read in isolation. Instead, it must be harmonized with the proviso in
section 12022.53, subdivision (h) that “[n]otwithstanding Section 1385 or any other
provision of law, the court shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section.” (See People v. Bracamonte,
supra, 106 Cal.App.4th at p. 713.)
The Bracamonte court acknowledged that section 12022.5, subdivision (c) was
amended in 2003 to provide, like section 12022.53, subdivision (h), that
“[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike
an allegation under this section or a finding bringing a person within the provisions of
this section.” The court also acknowledged that the legislation enacting the amendment
stated that the amendment was declarative of existing law. (See Stats. 2002, ch. 126,

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§ 13.) However, the court held, without any real explanation why, that section 12022.5,
subdivision (c) was trumped by section 12022.53, subdivision (f)’s proviso that unused
section 12022.5 enhancements “shall not be imposed.” (People v. Bracamonte, supra,
106 Cal.App.4th at p. 713, fn. 5.)
Bracamonte’s holding that section 12022.53, subdivision (f) only requires that
unused enhancements under section 12022.53 be stayed, but unused section 12022.5
enhancements must be struck, is illogical. The court’s reliance on the statement in
section 12022.53, subdivision (f) that unused section 12022.5 enhancements “shall not be
imposed” is not a persuasive reason for distinguishing between unused section 12022.53
and section 12022.5 enhancements. Section 12022.53, subdivision (f) specifically
provides that “[o]nly one additional term of imprisonment under this section shall be
imposed per person for each crime.” If only one section 12022.53 enhancement “shall be
imposed,” then it follows that the remaining section 12022.53 enhancements shall not be
imposed, just like an unused section 12022.5 enhancement.
In addition, there is no apparent reason the Legislature would intend that section
12022.53, subdivision (f) trump section 12022.5, subdivision (c) but not section
12022.53, subdivision (h). Section 12022.5, subdivision (c) and section 12022.53,
subdivision (h) use exactly the same language: “Notwithstanding Section 1385 or any
other provision of law, the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.” (Italics added.)
“‘To understand the intended meaning of a statutory phrase, we may consider use
of the same or similar language in other statutes, because similar words or phrases in
statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be

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given the same interpretation.’ [Citations.]” (In re Do Kyung K. (2001) 88 Cal.App.4th
583, 589.) Accordingly, we can see no basis for concluding that section 12022.53,
subdivision (h) overrides section 12022.53, subdivision (f), but the identical language in
section 12022. 5, subdivision (c) does not.
Moreover, the Bracamonte court held that a court may, and in fact must, stay -- not
strike -- an enhancement if the term for the underlying crime is stayed pursuant to section
654. (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711.) Section 654, unlike
section 12022.5, subdivision (c), contains no provision prohibiting the striking of
unimposed terms, and it contains no provision authorizing a court to stay an unimposed
term instead. The Bracamonte court did not explain why, then, section 654 could confer
the authority to stay an unused term but section 12022.5, subdivision (c) could not.
Finally, the Bracamonte court itself acknowledged that “the word ‘impose’
encompasses both situations where an enhancement is imposed and then executed and
imposed and then stayed.” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711.)
That being the case, it is just as reasonable to conclude that when the Legislature in
section 12022.53, subdivision (f) said that unused section 12022.5 enhancements “shall
not be imposed,” it meant that such enhancements shall not be executed, but instead may
be “imposed and then stayed,” as it is to conclude the Legislature meant the
enhancements must be struck and not stayed.
2. Rule 4.447
California Rules of Court, rule 4.447 (rule 4.447) provided in relevant part at the
time of the present offenses: “No finding of an enhancement shall be stricken or
dismissed because imposition of the term is either prohibited by law or exceeds . . .

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limitations on the imposition of multiple enhancements. The sentencing judge shall
impose sentence for the aggregate term of imprisonment computed without reference to
those prohibitions and limitations, and shall thereupon stay execution of so much of the
term as is prohibited or exceeds the applicable limit.”
The Bracamonte court summarily dismissed the People’s contention that rule
4.447 authorized staying rather than striking unused section 12022.5 enhancements,
stating: “No case has expressly applied this rule to a situation involving an indeterminate
life term and the Advisory Committee Comment refers to enhancements only in the
context of the Determinate Sentencing Act (DSA). [Citations.]” (People v. Bracamonte,
supra, 106 Cal.App.4th at p. 710.)
The Bracamonte court’s limitation of rule 4.447 to determinate sentencing
situations is unpersuasive. First, it is difficult to discern any logical reason why the
Judicial Council would intend that a court have the authority to stay unused
enhancements in a determinate sentencing situation but not where, as in Bracamonte,
some of the terms are determinate and some are indeterminate. The authorities the
Bracamonte court cited in support of its conclusion were section 1170.1 and People v.
Felix (2000) 22 Cal.4th 651, 659. Those authorities do establish that the determinate
sentencing rules only apply to determinate sentences.
However, the unused section 12022.5 enhancement terms in Bracamonte were
determinate sentences. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 709-710.)
Only the imposed enhancement, under section 12022.53, subdivision (d), was
indeterminate. Therefore it made no sense for the court to say that rule 4.447 does not

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permit a court to stay enhancements made applicable by section 12022.5, subdivision (a)
because the rule only applies to determinate sentences.
In addition, developments since Bracamonte was decided undermine its reasoning
and conclusion. First, the 2004 Advisory Committee Comment to rule 4.447 specifically
states that the rule “applies both to determinate and indeterminate terms.” (Advisory
Com. com., 23 pt. 3 West’s Ann. Codes, Rules (2005) foll. rule 4.447, p. 141.)
Second, this court in People v. Lopez (2004) 119 Cal.App.4th 355, in the context
of the habitual sexual offender law (§ 667.71) and the one strike law (§ 667.61),
extensively discussed the problem of whether to stay or strike an enhancement that
cannot be imposed because the court has imposed a mutually exclusive alternative
enhancement. The Lopez court acknowledged that “[o]rdinarily, an enhancement must be
either imposed or stricken . . . . The trial court has no authority to stay an enhancement,
rather than strike it -- not, at least, when the only basis for doing either is its own
discretionary sense of justice. [Citations.]” (Lopez, at p. 364.)
However, the Lopez court held that when a statute prohibits striking an
enhancement that cannot be imposed, the correct procedure is “to impose a sentence on
the barred enhancement, but then stay execution of that sentence.” (People v. Lopez,
supra, 119 Cal.App.4th at p. 364.) The court cited rule 4.447 in support of its holding.
The court acknowledged there is no statutory provision authorizing, as rule 4.447 does,
staying and not striking an unused enhancement. However, it pointed out there also is no
statute expressly authorizing a court to stay a term that cannot be imposed due to section
654. Yet it is well established that such a term is to be stayed, not struck. (Lopez, at
p. 365.)

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In the case of both rule 4.447 and section 654, the Lopez court held, the power to
stay rather than strike the enhancement “is implied, so that a defendant who is subject to
one of two alternative punishments will not be wrongly subjected to the other; if,
however, one of the two punishments is invalidated, the defendant will still be subject to
the remaining one.” (People v. Lopez, supra, 119 Cal.App.4th at p. 365.)
The Lopez court recognized that even if an unused enhancement were struck, it
could still be revived later by operation of law if the imposed enhancement were
invalidated. However, the court concluded the Judicial Council in rule 4.447 specified
that an unused enhancement should be stayed rather than struck because “a stay makes
the trial court’s intention clear -- it is staying part of the sentence only because it thinks it
must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion
of the sentence, it might be misunderstood as exercising its discretionary power under
Penal Code section 1385.” (People v. Lopez, supra, 119 Cal.App.4th at p. 365.)
Lopez’s reasoning is more persuasive, in our view, than Bracamonte’s. We
conclude the court had the authority to stay rather than strike the unused section 12022.5
enhancements and properly did so. For the same reasons, we reach the same conclusion
as to the unused section 12022 enhancement on count 6.
D. Blakely Error
Defendant contends the court’s imposition of consecutive terms for all counts was
unconstitutional under Blakely v. Washington (2004) 542 U.S. 296, because the factual
findings supporting consecutive terms were made by the court and not the jury. The
California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 held that “the
judicial factfinding that occurs when a judge exercises discretion to impose an upper term

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sentence or consecutive terms under California law does not implicate a defendant’s
Sixth Amendment right to a jury trial,” and therefore does not violate Blakely. (Black, at
p. 1244.) In the meantime, the United States Supreme Court granted certiorari in
Cunningham v. California (Feb. 21, 2006) ___ U.S. ___ [126 S.Ct. 1329], which involves
the same issue as Black and was argued on October 11, 2006.
Pending a decision of the United States Supreme Court, we remain bound by
Black. (See People v. Rodriguez (1993) 21 Cal.App.4th 232, 242, fn. 3.)
III
DISPOSITION
The judgment is modified to provide that execution of the term for count 4 is
stayed pursuant to section 654. In all other respects, the judgment is affirmed. The trial
court is directed to prepare a modified abstract of judgment incorporating this
modification and to forward a copy of the amended abstract to the Department of
Corrections.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
MILLER
J.

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