People v. Walker CA2/4

Filed 9/21/20 P. v. Walker CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B300990
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA301788)
v.
JOSEPH ANTHONY WALKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig E. Veals, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Respondent.
INTRODUCTION
In February 2007, as part of a plea bargain, appellant
Joseph Anthony Walker pled no contest to assault with a
firearm, in violation of Penal Code section 245, subdivision
(a)(2).1 The court dismissed counts for attempted murder
and being a felon in possession of a firearm, and sentenced
him to 18 years: four years for violating section 245, doubled
to eight years for a previous strike, with an additional 10
years as an enhancement under section 12022.5, subdivision
(a), for personally using a firearm during the commission of
a felony.
In July 2019, appellant moved to modify his sentence
to strike the 10-year enhancement under section 12022.5 for
various reasons, including that the imposition of the
enhancement violated section 654.2 The trial court denied
the motion. Appellant timely filed a “Notice of Appeal”
stating, in part, that he was “appeal[]ing the court[’s] recent
denial of relief to modify the current conviction or sentence
under the [C]alifornia Penal [C]ode section 654 statutory
provision” because the court’s denial “failed [to] support a
1 “Any person who commits an assault upon the person of
another with a firearm shall be punished by imprisonment in the
state prison for two, three, or four years . . . .” (Pen. Code, § 245,
subd. (a)(2).) All further statutory references are to the Penal
Code.
2 “Section 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.” (People v.
Jones (2012) 54 Cal.4th 350, 358.)
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record of conviction [though it] was given notice to the
prohibited sentence . . . [that] the offender conduct is found
in the offense and the offender conduct [sic].” We interpret
this language as expressing appellant’s intent to appeal only
from the court’s implied finding that the sentence
enhancement did not violate section 654.
Appellant’s appointed counsel filed an opening brief
under People v. Wende (1979) 25 Cal.3d 436 (Wende),
identifying no arguable issues and requesting this court to
conduct an independent review of the record. On April 21,
2020, we notified appellant he had 30 days to submit in
writing any issues or contentions he wished us to consider.
We received no response.
Our Supreme Court has held that when deciding
whether imposition of a sentence enhancement constitutes
multiple punishments for a single act, a court should first
consult the statute providing for the enhancement. (People
v. Ahmed (2011) 53 Cal.4th 156, 159 [deciding whether trial
court properly imposed two different sentence enhance-
ments].) “Only if the specific statutes do not provide the
answer should the court turn to section 654.” (Id. at 163.) If
an answer is found in the statute, “recourse to section 654
will be unnecessary because a specific statute prevails over a
more general one relating to the same subject.” (Ibid.)
Section 12022.5, subdivision (a), reads, in pertinent
part: “any person who personally uses a firearm in the
commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in
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the state prison for 3, 4, or 10 years, unless use of a firearm
is an element of that offense.” (§ 12022.5, subd. (a), italics
added.) However, section 12022.5, subdivision (d), reads, in
pertinent part: “Notwithstanding the limitation in
subdivision (a) relating to being an element of the offense,
the additional term provided by this section shall be imposed
for any violation of Section 245 if a firearm is used . . . .”
(§ 12022.5, subd. (d), italics added.) Because the language of
the enhancement statute specifically provides that the
firearm enhancement may be imposed, recourse to section
654 is unnecessary, and the trial court did not err in
impliedly finding the sentence did not violate section 654.3
3 In his underlying motion, appellant argued that our
Supreme Court in People v. Le (2015) 61 Cal.4th 416 (Le)
precluded a court from imposing a sentence enhancement for use
of a firearm under section 12022.5, subdivision (a), when the
underlying offense was for violating section 245, subdivision
(a)(2). He is mistaken. In Le, the defendant was found guilty of
violating section 245, subdivision (b) (assault with a
semiautomatic firearm). (Le, supra, at 420.) The question before
the Supreme Court was whether the trial court was precluded
“from imposing both a firearm enhancement under section
12022.5, former subdivision (a)(1), and a gang enhancement
under section 186.22, subdivision (b)(1)(B), in connection with a
single offense . . . .” (Id. at 419.) After finding that section
12022.5 provided for a 10-year enhancement, and section 186.22,
subdivision (b)(1)(B) provided for a five-year enhancement, our
Supreme Court held that only the longer of the two
enhancements (i.e., that provided by section 12022.5) could be
imposed. (Le, supra, at 421, 423, 429.) In other words, the court
held it permissible to add a section 12022.5 enhancement to a
(Fn. is continued on the next page.)
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Appellant has, by virtue of counsel’s compliance with
the Wende procedure and our review of the record, received
adequate and effective appellate review of the order denying
his motion. (Smith v. Robbins (2000) 528 U.S. 259, 278-279.)
sentence for a crime in which the use of a firearm was an
element. (See also People v. Rodriguez (2009) 47 Cal.4th 501, 505
[“because defendant’s crimes of assault with a firearm (§ 245,
subd. (a)(2)) necessarily involved firearm use, at first glance, that
would exempt him from the additional punishment. But because
his firearm use pertained to ‘violation[s] of Section 245,’
defendant falls within the exception to the exemption and thus is
subject to additional punishment under section 12022.5,
subdivision (a), for personally using a firearm in the three
assaults”].)
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DISPOSITION
The order denying appellant’s motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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