Steele

—Defendant Jerry Reed Steele kidnapped 15-year-old Ashley L. at gunpoint, took her to a secluded spot on a mountain highway and committed multiple sex crimes. After trial by jury, defendant was convicted of two counts of forcible rape (Pen. Code, § 261, subd. (2)), one count each of forcible oral copulation (§ 288a, subd. (c)), rape by a foreign object (§ 289, subd. (a)), and kidnapping (§ 207), and firearm enhancements incidental to the oral copulation and kidnapping convictions (§§ 12022.3, 12022.5). 1 The trial court sentenced defendant to 19 years and 4 months in state prison. On appeal, defendant claims the trial court should have *790 instructed the jury, sua sponte, concerning its duty to agree on the single act constituting each crime. He also contends the court, during sentencing, made prohibited dual use of facts and relied on improper factors to (1) impose consecutive sentences, (2) choose an aggravated base term, and (3) enhance the sentence for the two firearm use enhancements. Finally, he argues he did not use “a firearm or any other deadly weapon” in violation of section 12022.3 during the commission of forcible oral copulation.

In part I of the…

[Opinion certified for partial publication. [*] ]

OPINION

NICHOLSON, J.

Defendant Jerry Reed Steele kidnapped 15-year-old Ashley L. at gunpoint, took her to a secluded spot on a mountain highway and committed multiple sex crimes. After trial by jury, defendant was convicted of two counts of forcible rape (Pen. Code, § 261, subd. (2)), one count each of forcible oral copulation (§ 288a, subd. (c)), rape by a foreign object (§ 289, subd. (a)), and kidnapping (§ 207), and firearm enhancements incidental to the oral copulation and kidnapping convictions (§§ 12022.3, 12022.5). [1] The trial court sentenced defendant to 19 years and 4 months in state prison. On appeal, defendant claims the trial court should have instructed the jury, sua sponte, concerning its duty to agree on the single act constituting each crime. He also contends the court, during sentencing, made prohibited dual use of facts and relied on improper factors to (1) impose consecutive sentences, (2) choose an aggravated base term, and (3) enhance the sentence for the two firearm use enhancements. Finally, he argues he did not use "a firearm or any other deadly weapon" in violation of section 12022.3 during the…

Concurring and Dissenting.—

“My object all sublime

“I shall achieve in time—

“To make the punishment fit the crime.”

Gilbert, The Mikado, or the Town of Titipu (1885), act n

The repulsiveness of defendant’s conduct notwithstanding, the Legislature has prescribed an additional three years to defendant’s sentence pursuant to *796 Penal Code section 12022.3 only if defendant used a “deadly weapon” in carrying out his crime. 1 This court has recognized in the past that when the Legislature uses the term “deadly weapon” to describe a firearm it does not mean an unloaded firearm that is not used as a club or bludgeon. (People v. Brookins (1989) 215 Cal.App.3d 1297, 1303-1308 [ 264 Cal.Rptr. 240 ].) Here, the majority seeks to transform the clear and unambiguous definition of “firearm” set forth in section 12022.3 into a mandate for additional punishment that the Legislature has seen fit not to impose. Since the evidence is uncontradicted that the firearm defendant used was unloaded and not used as a club or bludgeon, the jury’s finding regarding the section 12022.3 charged enhancement should be reversed. In all other respects I agree with the conclusions reached by the…