Felix

A jury convicted Valentin Quintero Felix of carjacking (Pen. Code, § 215, subd. (a)), taking and driving a vehicle without the owner’s permission (Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, § 496, subd. (d)), and giving false information to a peace officer (id., § 148.9, subd. (a)). The jury also found Felix, in committing the carjacking, personally used a firearm within the meaning of Penal Code sections 12022.53, subdivision (b) and 12022.5, former subdivision (a)(2).

The trial court sentenced Felix to nine years in prison. In doing so, the court imposed a four-year enhancement for firearm use under section 12022.5, former subdivision (a)(2), rather than the 10-year enhancement for firearm use under section 12022.53, subdivision (b), which the court found would be cruel or unusual punishment.

The People appeal, contending imposition of the section 12022.53, subdivision (b) enhancement is mandatory and the 10-year enhancement is not cruel or unusual. The judgment is affirmed in part and reversed in part with remand for resentencing.

Facts

On the evening of October 22, 2001, Jan Dunlap was parked in a white Ford Taurus at Lindo Lakes Park…