Gutierrez

Defendant Gutierrez was convicted of attempted murder and of discharging a firearm at an occupied motor vehicle. In sentencing defendant, the trial court imposed enhancements for use of a gun and for great bodily injury as to the attempted murder conviction. The court ordered the sentences on both convictions to run consecutively. Defendant appeals the convictions and the sentences imposed. We affirm the judgment.

*1733 Facts and Proceedings Below

On June 2, 1990, the defendant along with 30 to 40 of his acquaintances was at a friend’s house. While the defendant and his friends drank beer in the front yard, Ms. Zarate and three others drove by the party. The defendant and his friends threw beer cans and shouted gang slogans as the car passed by.

The defendant then pursued the victims on a motorcycle. While a second person drove the motorcycle, the defendant sat on the back with a gun in his hand. During the chase, the victims saw the defendant clearly. As the motorcycle approached the car, the defendant fired the gun into the car, striking Ms. Zarate in the head.

At the time of the trial, Ms. Zarate remained hospitalized in a coma, suffering brain damage from the…

I concur in all but part V of the majority opinion. In part V the majority holds it was proper to impose enhancements under both Penal Code section 12022.5, subdivision (a) and Penal Code section 12022.7. 1 (Maj. opn., ante, at p. 1738.) I respectfully dissent because the facts of this case do not support the majority’s holding. In a case such as this, involving discharge of a firearm at an occupied motor vehicle, section 12022.5, subdivision (a) is not applicable. The applicable section is 12022.5, subdivision (b) (1). Therefore, the trial court’s discretionary power, under section 1170.1, subdivision (e), to impose enhancements under both section 12022.5, subdivision (a) and section 12022.7 is irrelevant. I will expand on my understanding of this confabulation of enhancement sections below.

In sentencing defendant on his conviction for attempted murder, the trial court imposed a consecutive five-year enhancement for personal use of a firearm under section 12022.5, subdivision (a). That subdivision provides, in *1740 relevant part, “Except as provided in subdivisions (b) and (c), any person who personally uses a firearm in the commission or attempted commission of a felony…

WOODS (Fred), J.

Defendant Gutierrez was convicted of attempted murder and of discharging a firearm at an occupied motor vehicle. In sentencing defendant, the trial court imposed enhancements for use of a gun and for great bodily injury as to the attempted murder conviction. The court ordered the sentences on both convictions to run consecutively. Defendant appeals the convictions and the sentences imposed. We affirm the judgment.

On June 2, 1990, the defendant along with 30 to 40 of his acquaintances was at a friend's house. While the defendant and his friends drank beer in the front yard, Ms. Zarate and three others drove by the party. The defendant and his friends threw beer cans and shouted gang slogans as the car passed by.

The defendant then pursued the victims on a motorcycle. While a second person drove the motorcycle, the defendant sat on the back with a gun in his hand. During the chase, the victims saw the defendant clearly. As the motorcycle approached the car, the defendant fired the gun into the car, striking Ms. Zarate in the head.

At the time of the trial, Ms. Zarate remained hospitalized in a coma, suffering brain damage from the gunshot wound to the…