Does section 186.22.22, subdivision (b)(4)(4) of the California Criminal Code apply to a person who, in the commission of a felony, personally and intentionally discharges a firearm while participating in a criminal street gang?

California, United States of America


The following excerpt is from People v. Martinez, G052423 (Cal. App. 2017):

section 186.22, subdivision (b)(4). (People v. Jones (2009) 47 Cal.4th 566, 569, 576.) Under section 12022.53, subdivision (c), any person who, in the commission of a felony listed in subdivision (a) of the statute, personally and intentionally discharges a firearm, shall be punished by an additional and consecutive prison term of 20 years. Furthermore, if a person vicariously discharges a firearm in the commission of such a felony for the benefit of a criminal street gang, he or she is subject to the 20-year enhancement ( 12022.53, subd. (e)(1)), but the court may not "impose" both a gang enhancement and the section 12022.53, subdivision (e)(1) firearm enhancement ( 12022.53, subd. (e)(2)). Under subdivision (h) of section 12022.53, "[n]otwithstanding [s]ection 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."

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