Winslow

The word “enhancement” is bound to send shivers down the spine of any person charged with a felony. In some cases, such as the instant one, punishment for the enhancement may exceed the punishment for the underlying substantive offense. As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate instructions and verdict forms so that a lawful determination can be made and sustained on appeal. All too frequently, this responsibility is lost upon the prosecutor who concentrates on the substantive charge or charges.

The CALJIC committee has provided a general framework for the jury’s resolution of enhancements. (See CALJIC No. 17.15 et seq.) However, the statutory enhancement scheme is so complex that the CALJIC committee has not drafted instructions for each and every situation. (See CALJIC No. 17.24.1 and Use Note.)

We agree with the previously articulated criticism of the Determinate Sentencing Act of 1976. It is capable of trapping everyone, even those who profess expertise. Our colleagues’ views have gone unheard in the Legislature. Sentencing issues continue to be in vogue and grow in…