Does section 186.22, subdivision (b)(1)(B) of the California Criminal Code apply to assault with a semiautomatic firearm?

California, United States of America


The following excerpt is from People v. Le, 189 Cal.Rptr.3d 166, 351 P.3d 295, 61 Cal.4th 416 (Cal. 2015):

Section 186.22 itself repeatedly describes its additional punishment for serious or violent felonies as an enhancement. (See 186.22, subds. (c) [If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof (italics added) ], 186.22, subd. (g) [Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section ... (italics added) ].) Consequently, it cannot be said that the serious felony offense of assault with a semiautomatic firearm under section 186.22, subdivision (b)(1)(B) can be distinguished as a substantive offense and not an enhancement, as that term is used by both sections 186.22 and 1170.1, subdivision (f). (See People v. Morris (1988) 46 Cal.3d 1, 16, 249 Cal.Rptr. 119, 756 P.2d 843 [Firearm enhancements, like special circumstances, are not substantive crimes].)

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