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I. FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 2002, defendants Eric Hung Le and Down George Yang of the Tiny Oriental Crips street gang committed a drive-by shooting outside a San Diego pool hall, believing that they were aiming at rival Asian Crips gang members. Instead, two bullets wounded members of a completely different gang, and a third bullet killed the owner of the pool hall, Don Su. Following a jury trial, defendants were convicted of murder (§ 187, subd. (a), count 1); attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 2); discharging a firearm from a motor vehicle (former § 12034, subd. (d), count 3); and assault with a semiautomatic firearm (§ 245, subd. (b), counts 4 & 5). The jury also found true that the crimes in counts 1 through 5 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission, at least one principal used a firearm (§ 12022.53, subds. (d) & (e)(1)); and finally, as to counts 3 and 4, that Yang personally used a firearm (§ 12022.5, former subd. (a)(1)). The verdict reflects that the jury…

In People v. Rodriguez (2009) 47 Cal.4th 501 [ 98 Cal.Rptr.3d 108 , 213 P.3d 647 ] (Rodriguez), we held that a defendant’s single act of personally using a gun during the commission of a felony could not be used to support both a sentence enhancement for personal use of a firearm under Penal Code section 12022.5, former subdivision (a)(1), 1 and to elevate the punishment for a criminal street gang allegation to a “violent felony” under section 186.22, subdivision (b)(1)(C). We explained that the application of both enhancements in that case depended on the defendant’s use of a firearm, and that subdivision (f) of section 1170.1 prohibits imposing two sentence enhancements when both enhancements are “ ‘for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense.’ ” (Rodriguez, supra, at p. 508 , quoting § 1170.1, subd. (f), italics omitted.)

We granted review in this case to decide whether section 1170.1, subdivision (f) also precludes a trial court from imposing both a firearm enhancement under section 12022.5, former subdivision (a)(1), and a gang enhancement under section 186.22, subdivision (b)(1)(B), in connection…

Dissenting. — Among other crimes, defendant Down George Yang was convicted of assault with a semiautomatic firearm under Penal Code section 245, subdivision (b), a crime that Penal Code section 1192.7, subdivision (c)(31), defines as a “ ‘serious felony.’ ” 1 The jury also found true that he committed that crime to benefit a criminal street gang under section 186.22, subdivision (b)(1), which requires the court to enhance the punishment for a serious felony by an additional five years. The majority, however, relying on section 1170.1, subdivision (f), as interpreted in People v. Rodriguez (2009) 47 Cal.4th 501 [ 98 Cal.Rptr.3d 108 , 213 P.3d 647 ] (Rodriguez), overrides this clear legislative mandate and prohibits imposition of the enhanced penalty for committing a serious felony to benefit a criminal street gang.

I dissent. This case is entirely different from Rodriguez, supra, 47 Cal.4th 501 ; the difference demands a different result. In Rodriguez , imposing the gang enhancement for a violent felony would have caused a firearm use enhancement to be used twice, in violation of section 1170.1, subdivision (f). Here, imposing the gang enhancement for a serious felony does not…