People v. Jose D.

Citations: 219 Cal. App. 3d 582; 268 Cal. Rptr. 364; 1990 Cal. App. LEXIS 336Docket: B040876

Court: California Court of Appeal; April 9, 1990; California; State Appellate Court

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Jose D. appeals the juvenile court's ruling that declared him a ward of the court under Welfare and Institutions Code section 602 for attempted second-degree murder, which involved great bodily injury from a firearm discharged from a vehicle (Penal Code sections 664/187, 12022.55), as well as two counts of assault with a deadly weapon (Penal Code section 245, subd. a). He argues that there was insufficient evidence to classify him as an aider and abettor and that the enhancement under Penal Code section 12022.55 was improperly applied, as he was not the shooter.

The court found sufficient evidence supporting the conviction for aiding and abetting, as it was established that on October 4, 1988, a blue Toyota with Jose D. and others confronted two girls on bicycles, invoking gang affiliation. After an exchange of insults, the car followed the girls, and a passenger, Aaron G., brandished a firearm. Shortly thereafter, Ismael Lopez was shot by the passenger while the blue Toyota was parked nearby, and witnesses identified Aaron G. as the shooter. Later that day, police stopped the blue Toyota, finding Jose D. driving and a gun in the vehicle. Jose admitted to following the girls due to their insults. The court concluded that while the aiding and abetting conviction was valid, the enhancement under section 12022.55 was erroneously applied since Jose D. was not the shooter.

As the appellant drove past a house, individuals began throwing rocks and swearing. One man retrieved a baseball bat from a car trunk, prompting Aaron G. to brandish a gun, which the appellant did not know was present until it was fired. The appellant denied attempting to run over two girls and claimed he did not see Aaron point the gun at them. Aaron likewise denied threatening the girls, asserting he shot to intimidate after suspecting the man with the bat might pull a shotgun.

The court found sufficient evidence to support the appellant's role as an aider and abettor to three counts, noting he drove closely alongside the girls and parked in front of the house as Aaron shot Ismael Lopez. This demonstrated the requisite knowledge and intent for aiding and abetting. However, the trial court erred in applying an enhancement under Penal Code section 12022.55, which mandates a five-year sentence addition for those who discharge a firearm from a vehicle during a felony. The court examined whether this enhancement applies to aiders and abettors like the appellant, who did not discharge a firearm.

Previous cases established that statutory interpretation should clarify whether such enhancements apply to individuals who merely assist in the crime. The court concluded the legislature did not intend for section 12022.55's enhancement to apply to an aider and abettor. The language of other relevant statutes was noted, demonstrating that when the legislature intends to include aiders and abettors in specific enhancements, it does so explicitly, unlike in section 12022.55, which requires interpretation to ascertain legislative intent.

In People v. Walker, the California Supreme Court established that for a statute to impose derivative liability on individuals not directly committing a crime, there must be explicit legislative intent. Penal Code section 31 outlines that an aider and abettor can be held responsible for a crime committed by a confederate, but does not impose additional punishment based on the accomplice’s actions. Legislative clarity is crucial, especially post-Walker, when it comes to enhancement provisions for those indirectly involved in a crime. For instance, section 12022.55 specifies increased penalties for individuals who inflict great bodily injury or cause death by firing a weapon from a vehicle, implying personal involvement in the act. The court has interpreted similar statutes, like Penal Code section 12022.8, to require personal infliction of harm. The structure and wording of section 12022.55 suggest it is not intended to broadly encompass all participants in a crime but rather focuses on the individual who performs the act of discharging a firearm. The inclusion of a "notwithstanding" clause in section 12022.55 distinguishes its five-year enhancement from other provisions, not indicating broader applicability. Legislative efforts to address vehicle-related crimes do not imply that all occupants are subject to the same penalties. Thus, the intention is to differentiate between the shooter and other participants in a drive-by shooting scenario.

Section 12022.55 is interpreted as applying solely to the individual who discharged a firearm, supported by the precedent set in People v. Walker. This interpretation aligns with the legislative intent that the actual shooter during a felony or attempted felony should face harsher penalties than accomplices. The legislature acknowledged the need for clarity in defining derivative liability for sentencing enhancements after the Walker decision but did not explicitly establish such liability in Section 12022.55. Consequently, the court modifies the judgment by removing the finding related to this section while affirming all other aspects of the judgment. Lucas, P.J. and Turner, J. concurred. Section 12022.55 outlines enhanced penalties for those inflicting great bodily injury or causing death while discharging a firearm from a vehicle during a felony, aiming to deter violent actions on public streets.