Rodriguez

Appellant was convicted of three counts of assault with a firearm, after he fired upon three victims during a single incident. The jury found true the special allegations that appellant had personally used a firearm and that he had committed the offenses "for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members." The trial court imposed a four-year firearm enhancement as to each count under Penal Code section 12022.5. [1] The court also imposed a gang enhancement pursuant to section 186.22, subdivision (b)(1), choosing the 10-year enhancement of subdivision (b)(1)(C), which is imposed when the underlying offense was a "violent felony" as defined in section 667.5. As relevant here, section 667.5, subdivision (c)(8), defines a violent felony as any felony in which the defendant uses a firearm as pled and proven pursuant to section 12022.5. Appellant contends the imposition of the two enhancements based upon the same firearm use violated section 654's prohibition against multiple punishments for the same act. We agree and modify the judgment to stay…