Section 3149 | CALCRIM (Jury Instructions)

are two different things.” (People v. Jomo K. Bland, supra, 28 Cal.4th at p. 336
[italics in original].)
Person Injured or Killed Need Not Be Victim of Crime
In People v. Oates (2004) 32 Cal.4th 1048, 1052 [12 Cal.Rptr.3d 325, 88 P.3d 56],
the defendant fired two shots into a group of people, hitting and injuring one. He
was convicted of five counts of premeditated attempted murder. The court held that
the subdivision (d) enhancement for causing great bodily injury applied to each of
the five counts even though the defendant only injured one person. (Id. at p. 1056.)
The court observed that “the phrase, ‘any person other than an accomplice,’ does not
mean ‘the victim’ of the underlying crime.” (Id. at p. 1055.)
Multiple Enhancements for Single Injury
The court in Oates (supra, 32 Cal.4th at p. 1056) also held that the trial court was
required to impose all five subdivision (d) enhancements because Penal Code
section 12022.53(f) requires a court to impose the longest enhancement available.
The court further found that Penal Code section 654 did not preclude imposition of
multiple subdivision (d) enhancements due to “the long-recognized, judicially-
created exception for cases involving multiple victims of violent crime.” (Id. at p.
1062.)
Multiple Enhancements May Not Be Imposed Based on Multiple Participants
In People v. Cobb (2004) 124 Cal.App.4th 1051, 1054, fn. 3 [21 Cal.Rptr.3d 869],
the defendant and two others simultaneously shot at the decedent. The defendant
was convicted of personally inflicting death by use of a firearm. (Id. at p. 1053; Pen.
Code, § 12022.53(d).) In addition to the sentence for personally using a firearm, the
trial court also imposed two sentences under Penal Code section 12022.53(e)(1)
based on the other two participants having also fired at the decedent (Ibid.) The
Court of Appeal reversed the latter two enhancements, holding that Penal Code
section 12022.53(f) did not permit multiple sentence enhancements based on
multiple participants in one crime. (Id. at p. 1058.)
Self-Defense and Imperfect Self-Defense
Penal Code section 12022.53(l) provides that “[t]he enhancements specified in this
section shall not apply to the lawful use or discharge of a firearm by a public
officer, as provided in Section 196, or by any person in lawful self-defense, lawful
defense of another, or lawful defense of property, as provided in Sections 197, 198,
and 198.5.” In People v. Watie (2002) 100 Cal.App.4th 866, 884 [124 Cal.Rptr.2d
258], the court held, “[t]his subdivision, on its face, exempts lawful (perfect) self-
defense from the section’s application. It does not exempt imperfect self-defense.”
Further, an instruction informing the jury that the defense of self-defense applies to
the enhancement is not necessary. (Id. at p. 886.)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 359–360.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
CALCRIM No. 3149
ENHANCEMENTS AN