People v. Reed

[151]

PUGLIA, P. J.

Defendant appeals from the judgment of conviction entered upon his plea of guilty to forcible rape committed in concert with another person. (Pen. Code, §§ 261, subd. (2), 264.1; all further statutory references are to sections of the Penal Code.) Having judicially admitted that he was armed with a firearm in the commission of the rape in violation of section 12022.3, subdivision (b), defendant now contends the court erred in imposing sentence in accordance with his admission because he was not personally so armed and, defendant argues, section 12022.3, subdivision (b), punishes only those who are personally armed.

1

We shall hold that section 12022.3, subdivision (b), applies only to one who is

personally

armed with a firearm or deadly weapon. Although defendant admitted the allegation that he was armed with a firearm, the record discloses that the admission was induced by official mischaracterization, based upon good faith misapprehension, of the scope and effect of section 12022.3, subdivision (b).

2

Accordingly, defendant must be afforded the opportunity to withdraw his admission. We turn now to analysis of section 12022.3.

[152]

When statutory language is clear, there is no need for judicial construction.

(People

v.

Cole

(1982) 31 Cal.3d 568, 572 [183 Cal.Rptr. 350, 645 P.2d 1182];

Solberg v. Superior Court

(1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].) The ambiguity of section 12022.3, subdivision (b), with respect to the category of persons liable for its increased penalty becomes apparent when it is compared with other enhancement provisions. Sections 12022, subdivision (b), 12022.7 and 12022.5 all expressly require “personal” culpability. The Supreme Court recently held regarding section 12022.7, that “[t]he choice of the word ‘personally’ necessarily excludes those who may have aided or abetted the actor directly inflicting the injury.”